Thomas Jefferson believed that “legislators ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons.” So noted the U.S. Supreme Court in its 1972 decision in Gravel v. United States.
James Madison expounded on this principle in The Federalist, No. 57, explaining that Congress “can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.”
It is a principle based on plain fairness and common sense. And it is going to play a key role in the ongoing battle over ObamaCare.
Every member of Congress who voted for the deceptively named Patient Protection and Affordable Care Act (ACA, or ObamaCare) knows that he is facing potential political extinction in the November 2014 elections because of that vote. That means the entire lineup of Democrats in the House and Senate, with the exception of Reps. Jim Matheson (D-Utah) and Mike McIntyre (D-N.C.).
Many Democrats are desperate and are openly, vocally in revolt against the Obama White House and their party leadership. Zeke J. Miller at Time.com noted on November 14:
President Barack Obama is facing one of the toughest tests of his political life: a Democratic revolt that threatens to do irreparable harm to his signature legislative achievement.
There is plenty in the mammoth ObamaCare program to anger everyone. But perhaps one of the most troublesome issues that will plague congressional Democrats in the coming election is the matter of the controversial exemptions to ObamaCare that the Washington ruling class arranged for themselves. ObamaCare cheerleaders vehemently insist that it is wrong to call the special privileges they are receiving “exemptions.” Technically they may be correct, but substantively they are wrong. The ACA, thanks to constitutionalist and Tea Party Republican opposition, does indeed require that members of Congress and their staffs purchase healthcare insurance provided under ObamaCare. However, as we have reported in previous articles (here and here), Democrat and Republican leaders later connived with President Obama to have the Office of Personnel Management (OPM) come up with an illegal ruling that allows members of Congress and their staffs to keep the luxurious Federal Employee Health Benefits Program (FEHBP) “Rolls Royce” subsidy that pays for 75 percent of their premium costs. This amounts to $5,000 in subsidy for an individual plan and $11,000 for a family plan.
Members of Congress insisted that Capitol Hill would be hit with a terrible “brain drain,” as staff members would leave if they had to pay for their own health care without these subsidies. The same congressional whiners making these complaints have not shown the same concern for the tens of millions of Americans they have pushed into the same situation with the ACA. The ordinary citizen facing ObamaCare sticker shock cannot simply vote himself a fat subsidy.
This is not the first time, of course, that Congress has exempted itself from laws it imposes on the rest of us, or provided itself with special privileges. A continuing sore point with many taxpayers is the cushy pension system that Congress has bestowed on its members, in addition to the many other perks they have voted for themselves. Members of Congress become fully vested in the retirement system after only five years of “service” and receive payouts far in excess of what their constituents receive in the private sector. Only two members of Congress, Rep. Ron Paul (R-Texas) and Rep. Howard Coble (R-N.C.), have steadfastly stood on principle and refused to participate in the system, claiming that it is inappropriate and immoral to saddle taxpayers with the bill for this extravagant pension plan for privileged politicians.
A “Vigilant and Manly Spirit” — Madison
Congressmen Paul and Coble would, no doubt, merit the approbation of James Madison for their stands on this issue. Madison, frequently referred to as the “father” of the U.S. Constitution, wrote in The Federalist, No. 57:
I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny.
“Without which every government degenerates into tyranny.” That’s pretty strong. And who will argue with Madison on that point? Almost every day that passes brings new evidence that federal bureaucrats and federal politicians are becoming more and more a class of privilege and oppression, like the nomenklatura, the small, Communist Party elite that ruled the old Soviet Union and other communist states.
Madison continued in The Federalist:
If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America — a spirit which nourishes freedom, and in return is nourished by it.
If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.