HOUSE FILES CHALLENGE OVER THE CHANGES TO THE AFFORDABLE CARE ACT

800px-Capitol_Building_Full_ViewToday, we filed our complaint United States House of Representatives v. Burwell (Case 1:14-cv-01967), in the United States District Court for the District of Columbia. The House’s complaint contains eight counts concerning constitutional and statutory violations of law related to the Patient Protection and Affordable Care Act (ACA). There are a myriad of unilateral amendments to this Act, ordered by President Obama’s Administration, which could be the subject of a challenge, and there are a number of changes that are already being litigated, including King v. Burwell, which has been accepted by the Supreme Court for review. The House’s complaint, however, focuses on the Administration’s usurpation not only of the House’s Article I legislative authority, but also of the defining “power of purse.” Both of these powers were placed exclusively in Article I by the Framers of our Constitution. These constitutional and statutory claims are highly illustrative of the current conflict between the branches over the basic principles of the separation of powers. The House’s complaint seeks to reaffirm the clear constitutional lines of separation between the branches – a doctrine that is the very foundation of our constitutional system of government. To put it simply, the complaint focuses on the means rather than ends. The complaint is posted below.

This is not a new question. Indeed, in some respects, it is the original question. The Framers were well aware that governmental actors would seek to aggrandize power within the system the Framers had created. In Federalist 51, James Madison warned that “[i]n framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Accordingly, the Framers put into place what Madison called “the necessity of auxiliary precautions” to maintain the balance of powers within the system. Such precautions are of little value absent judicial review to maintain the lines of separation; to arrest what Madison called the “encroaching nature” of power.

Once again, as lead counsel, I have to remain circumspect in any public statements on the filing in deference to the Court and the legal process.

Jonathan Turley
Lead Counsel

Here is the Complaint: House v. Burwell (D.D.C.) – Complaint (FILED)

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419 thoughts on “HOUSE FILES CHALLENGE OVER THE CHANGES TO THE AFFORDABLE CARE ACT

  1. Sandi, yes I’d agree it was negligence. I think it’s negligent to keep a gun in the same room with a person with children in the house, unlocked, for ease of access in case hordes of looters or rapists break down one’s door.

  2. The Constitutional Daily also thinks that Standing To Sue may be a problem for the House lawsuit. Here is part of the article:

    Turley’s suit claims the Obama administration illegally postponed a requirement that companies with 50 or more employees offer health coverage to full-time employees or pay penalties, and also that the Obama administration will give away about $175 billion to insurance companies under the law as part of a program called cost-sharing reductions.

    “In challenging these actions, this case addresses fundamental issues regarding limits of Executive power under our constitutional form of government, and the continued viability of the separation of powers doctrine upon which ‘the whole American fabric has been erected,’ ” the suit says.

    One big barrier will be the constitutional requirement of standing to sue. The House leaders will need to prove that the House as an institution was injured by the Obama administration’s actions and the injuries can be fixed by the court.

    In July, John Malcolm and Elizabeth Slattery from the Heritage Foundation summed up the legal roadblock in an in-depth research finding.

    “The House will have to demonstrate to a court’s satisfaction that as an institution, it has been personally harmed by President Obama’s actions, which have effectively nullified the votes of its members, leaving it little recourse to rectify this injustice without court intervention,” they said. “Such a lawsuit would require the courts to police the limits of the political branches’ powers, and overcoming the natural reluctance of courts to get involved in disputes that have political overtones involving the other branches of government will not be easy.”

    Another problem would be that the court could say that Congress has a way to redress the injuries allegedly suffered at the hands of President Obama – by impeaching him.

    Back in 2011, 10 members of Congress did sue President Obama over his decision to use military force in Libya. According to a Congressional Research Service report from 2012, a reviewing federal district court dismissed the case on jurisdictional grounds due to lack of standing.

    “While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law,” federal judge Reggie Walton said.

    Judge Walton expressed dismay that the plaintiffs wanted “to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.”

    Whether Judge Walton’s decision is an indicator of the current lawsuit’s future remains to seen, many legal observers believe the standing issue is critical to any effort by House Republicans to seek help from the courts going forward, and that a lawsuit from a state or an individual would “stand” a better chance with the standing issue.

  3. As we dogs say: Four legs good! Two legs baaaad!

    The Congress has two legs. The House is one with many toes (members). Not all the toes are on board. That aspect of Standing is not discussed by the article.

    But, I am just a dog and what do I know.

  4. Paul: “Bush took us to war in Iraq with bad intel, perhaps he lied. Congress bought those lies and gave him permission …”

    That’s incorrect.

    Operation Iraqi Freedom was triggered by UNMOVIC’s confirmation of Saddam’s continued material breach of the Gulf War ceasefire UNSC resolutions – not the pre-war intelligence.

    Excerpt from my explanation of the law and policy basis of OIF at http://learning-curve.blogspot.com/2014/05/operation-iraqi-freedom-faq.html :

    Q: Did Bush lie his way to war with Iraq?

    A: No.

    One, the Iraq enforcement was compliance-based. President Bush’s presentation of intelligence did not and could not trigger OIF. By procedure, only Iraq’s noncompliance could trigger enforcement, and only Iraq’s compliance could switch off the enforcement.

    The prevalent myth that Operation Iraqi Freedom was based on a lie relies on a false premise that shifted the burden of proof from Iraq proving compliance with the UNSC resolutions to the US proving Iraqi possession matched the pre-war intelligence estimates. In fact, neither the intelligence nor demonstration of Iraqi possession was a required element of the Gulf War ceasefire enforcement because it pivoted solely on whether Iraq proved compliance with the UNSC resolutions. The US as the chief enforcer of the UNSC resolutions held no burden of proof in the Iraq enforcement. From the outset of the Gulf War ceasefire, Saddam as the probationary party held the entire burden of proof to prove Iraq was disarmed and compliant with the standard mandated by UNSCRs 687, 688, and related resolutions. The question of “Where is Iraq’s WMD?” was never for the US and UN to answer; it was always one of the questions Saddam was required to answer to the mandated standard in order to pass the compliance test.

    OIF is often isolated out of context and misrepresented as a new policy by Bush. In fact, OIF was the coda of the US-led enforcement of the Gulf War ceasefire that began in 1991. President Bush inherited Saddam’s “clear and present danger to the stability of the Persian Gulf and the safety of people everywhere” (Clinton) and carried forward the Iraq enforcement from President Clinton. Demonstration of Iraqi possession of WMD was not necessary to confirm Saddam’s noncompliance because, from the outset, Iraq’s guilt of possession was established in the factual baseline of the Gulf War ceasefire as the foundational premise of the disarmament process. The basic presumption of the disarmament process was anywhere Iraq provided deficient account of its weapons imputed continued possession. Thus, had Bush presented no intelligence on Iraq’s weapons, the compliance-based enforcement procedure would have been the same. Saddam was guilty until he proved Iraq was compliant. If Iraq was not compliant, then Saddam continued to be armed and dangerous.

    Two, it is undisputed that Iraq was noncompliant at the decision point for Operation Iraqi Freedom. The main trigger for OIF was the UNMOVIC Cluster Document, which confirmed Iraq’s material breach and triggered OIF in March 2003 in the same way that the UNSCOM Butler Report triggered Operation Desert Fox in December 1998.
    . . .
    The compliance standard for Iraq was set by UNSC resolution (see, at minimum, UNSCRs 687, 688, and 1441) and enforced under US law (see, at minimum, P.L. 105-235 and P.L. 107-243). Pursuant to UNSCR 688 and related resolutions, numerous observers documented Saddam’s “systematic, widespread and extremely grave violations of human rights and of international humanitarian law by the Government of Iraq, resulting in an all-pervasive repression and oppression sustained by broad-based discrimination and widespread terror” (UN Commission on Human Rights). Pursuant to UNSCR 687 and related resolutions, UNMOVIC reports throughout the UNSCR 1441 inspection period made clear Iraq had failed to sufficiently account for proscribed weapons, including stocks, and cooperate to the mandated standard along with other violations.

    On March 7, 2003, the UNSCR 1441 inspection period concluded when UNMOVIC presented the 173-page Cluster Document to the UN Security Council and confirmed “Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687” (UNSCR 1441) with “about 100 unresolved disarmament issues” (Cluster Document):

    UNMOVIC evaluated and assessed this material as it has became available and … produced an internal working document covering about 100 unresolved disarmament issues … [for example] UNMOVIC has credible information that the total quantity of BW agent in bombs, warheads and in bulk at the time of the Gulf War was 7,000 litres more than declared by Iraq [and] … With respect to stockpiles of bulk agent stated to have been destroyed, there is evidence to suggest that these was [sic] not destroyed as declared by Iraq.
    … UNMOVIC must verify the absence of any new activities or proscribed items, new or retained. The onus is clearly on Iraq to provide the requisite information or devise other ways in which UNMOVIC can gain confidence that Iraq’s declarations are correct and comprehensive.

    . . .
    Bush cited properly to Iraq’s noncompliance with the UNSC resolutions as Clinton had done for ODF. But in a departure from Clinton’s public presentation, Bush also cited the pre-war intelligence, despite that the intelligence could not trigger enforcement. Propagandists pounced on Bush’s error of presentation to shift the burden of proof from Iraq proving compliance with the UNSC resolutions to the US proving Iraqi possession matched the pre-war intelligence estimates. However, the mistake does not change that Iraqi possession was established in the factual baseline of the Gulf War ceasefire as the foundational premise of the disarmament process. The only legal and reliable way to know Saddam had disarmed was Iraq proving compliance with the standard mandated by the UNSC resolutions enforced under US law. Saddam’s noncompliance – including Iraq’s basic failure to declare and destroy all its as-of-Gulf-War WMD under international supervision – was confirmed by UNMOVIC with the Cluster Document, which imputed the continued possession of proscribed weapons by Iraq, whereupon Bush properly applied the operative enforcement procedure at the decision point for OIF.

    • Thank you, Eric. There are several people active on this site who allude to Bush lying. Not that anything will change, but the more they hear the truth it might sink in, eventually.

  5. Add: Paul,

    If you actually read the AUMF for Operation Iraqi Freedom – Public Law 107-243 (2002) – you’ll see that its framework is the record of Saddam’s noncompliance with the Gulf War ceasefire and situational context for Operation Iraqi Freedom. The Congressional authorization is to enforce the UNSC resolutions.

    By the text of PL 107-243, Congress’s official position, OIF was right on the law.

    You can read for yourself the US statutes and UNSC resolutions cited by Congress in PL 107-243, the UN findings at the decision point for OIF, as well as the post-war Iraq Survey Group findings. All of it’s on-line.

    If you prefer not to read the sources, then I suggest this article that compared PL 107-243 to the facts:
    http://www.americanthinker.com/articles/2008/08/who_lied_about_iraq.html

  6. Sandi Hemming,

    It’s important that we persist in setting the record straight on Operation Iraqi Freedom. The false narrative that the Iraq enforcement was “based on lies” (Turley) has metastasized into a corrupted premise in US politics like a virus in an infected operating system that has caused compounding harms in American domestic and foreign affairs.

    Not that anything will change

    For our nation’s sake, it needs to change – setting the record straight needs to happen.

    On the problem’s face, the task should be simple to set the record straight. The primary sources of the Gulf War ceasefire enforcement are easily accessed on-line and provide a straightforward explanation of the law and policy of Operation Iraqi Freedom. The UNSCRs, the US statutes enforcing the UNSCRs, the UN findings pursuant to the UNSCRs, Saddam’s record of noncompliance with the UNSCRs, and President Clinton’s whole-presidency struggle to enforce the UNSCRs plainly show the decision for OIF was right on the law and justified on the policy.

    President Bush isn’t even the best president for studying the law and policy of OIF – President Clinton is. The Iraq enforcement matured under Clinton – Bush merely picked up Clinton’s case against Saddam for the coda of the Gulf War ceasefire.

    Yet somehow, despite that the fact basis for OIF is in plain view and the Saddam problem was headline news for years with grim Clinton officials, the false narrative became prevalent. Even mission supporters commonly assume the false premise that shifted the burden of proof from Iraq proving compliance with the UNSC resolutions to the US proving Iraqi possession matched the pre-war intelligence estimates.

    The prevalence of the false narrative in the zeitgeist, such that even people like Professor Turley assume it, proves the effectiveness of propaganda when wielded zealously by unprincipled partisans.

    To set the record straight, I encourage you to learn my explanation of the law and policy basis of Operation Iraqi Freedom:
    http://learning-curve.blogspot.com/2014/05/operation-iraqi-freedom-faq.html

    More importantly, be conversant with the primary sources of the Gulf War ceasefire enforcement. These basic essentials are linked in the ‘further reading’ section of my OIF FAQ:

    Basic essentials for understanding OIF in the proper context include the 1990-2002 UNSC resolutions for Iraq (at minimum, see UNSCRs 687, 688, and 1441), Public Law 107-243 (the 2002 Congressional authorization for use of military force against Iraq), Public Law 105-235 (“Iraqi Breach of International Obligations”, 14AUG98), President Clinton’s February 1998 remarks on Iraq to Pentagon personnel and December 1998 announcement of Operation Desert Fox (the penultimate military enforcement step that set the baseline precedent for OIF), President Bush’s September 2002 remarks to the United Nations General Assembly and excerpts from the 2003 State of the Union, the April 2002 UN Commission on Human Rights situation report on Iraq pursuant to UNSCR 688, the March 2003 UNMOVIC Cluster Document (summary) pursuant to UNSCR 687 that triggered the final decision for OIF, and the Iraq Survey Group’s Duelfer Report.

    You can find a larger table of sources here:
    http://learning-curve.blogspot.com/2004/10/perspective-on-operation-iraqi-freedom.html

    Here’s an appetizer from President Clinton’s letter to Congress on the legal authority for Operation Desert Fox, December 18, 1998:.

    At approximately 5:00 p.m. eastern standard time on December 16, 1998, at my direction, U.S. military forces conducted missile and aircraft strikes in Iraq in response to Iraqi breaches of its obligations under resolutions of the United Nations Security Council. … It [this action] is consistent with and has been taken in support of numerous U.N. Security Council resolutions, including Resolutions 678 and 687, which authorize U.N. Member States to use “all necessary means” to implement the Security Council resolutions and to restore peace and security in the region and establish the terms of the cease-fire mandated by the Council, including those related to the destruction of Iraq’s WMD programs. … I directed these actions pursuant to my authority under the Constitution as Commander in Chief and as Chief Executive, and to conduct U.S. foreign relations, as well as under the Authorization for Use of Military Force Against Iraq Resolution (Public Law 102-1) enacted in January 1991.

    Which goes to Paul’s mistaken notion that “Congress bought those lies and gave him permission …”. In fact, enforcing Iraq’s compliance with the UNSCRs was the law and policy basis of Operations Desert Storm, Desert Fox, and ultimately, Iraqi Freedom. Saddam’s noncompliance with the UNSCRs was true, continuous for over a decade, and confirmed at the decision point for OIF by the UN Commission on Human Rights and UNMOVIC Cluster Document.

    The 2002 AUMF (PL 107-243), while politically prudent, was not legally necessary. The 1991 AUMF for the Gulf War (PL 102-1, pursuant to UNSCR 678) was equally live for President Bush in 2003 as for President HW Bush in 1991 and President Clinton in 1998.

  7. Ron Suskind, “The Way of the World”, clearly shows that the Bush W administration actually did lie to prosecute the Iraq War, twice that he was able to prove, and I would say many times more than that that we are unable to prove.
    The Iraqi War was stupid and emotionally based, and the American people were blatantly lied to in order to get them behind it. Just like Obama and the ACA.

  8. As most of the media and people here are recognizing what I said early on, the biggest challenge to this lawsuit will be standing.
    If they can get past that, the suit may have some merit.
    As I also said earlier, the court may rule that there are other legal avenues available, like impeachment, that are far more appropriate for the relief the plaintiffs are seeking.

  9. Gary T,

    Rather than rely on the likes of Ron Suskind or even my take, I suggest that you read for yourself the primary sources of the law and policy of Operation Iraqi Freedom that I recommended to Sandi Hemming at my comment on November 28, 2014 at 3:56 am. They’re linked here: http://learning-curve.blogspot.com/2014/05/operation-iraqi-freedom-faq.html#furtherreading

    The primary sources for OIF, eg, US statutes, UNSC resolutions, Presidential policy, and UN findings, provide a straightforward explanation plainly showing President Bush’s decision for OIF was right on the law and justified on the policy.

    That said, did Bush make mistakes in his public presentation of the case against Saddam? Yes he did: President Bush should not have deviated from President Clinton’s public presentation of the case against Saddam. But Bush’s error of presentation did not, and by procedure could not, trigger OIF. OIF, by procedure, was triggered Saddam’s material breach of the Gulf War ceasefire UNSC resolutions enforced by the President under US law.

    Excerpt from http://learning-curve.blogspot.com/2014/05/operation-iraqi-freedom-faq.html:

    Four, the public controversy is over Bush’s presentation of intelligence on latter Iraqi NBC stocks and programs, yet the pre-war intelligence that Bush presented was simply the intelligence that was available. A partisan Democrat-slanted Senate Select Committee on Intelligence later analyzed pre-war statements by Bush administration officials and concluded they were largely “substantiated by intelligence”. Because of Saddam’s record, Clinton and Bush officials enforcing the Gulf War ceasefire were obligated to judge the intelligence in an unfavorable light for Iraq, and 9/11 compelled US officials to increase their wariness due to Saddam’s belligerence and guilt on terrorism. Congressmen, Democrats and Republicans, who independently reviewed the pre-war intelligence in light of Saddam’s record largely shared Bush’s determination.

    At the same time, the imprecision of the intelligence on Iraq due to Saddam’s “denial and deception operations” (Duelfer Report) was a known issue early in the disarmament process and accounted for with Iraq’s presumption of guilt, burden of proof, and standard of compliance. Again, due in part to the success of Saddam’s “concealment and deception activities” (Duelfer Report), the “clear and present danger to the stability of the Persian Gulf and the safety of people everywhere” (Clinton) was imputed from Iraq’s noncompliance, not from demonstrated Iraqi possession of WMD stocks. And again, the pre-war intelligence did not and could not trigger enforcement. By procedure, OIF was triggered by Iraq’s material breach of its obligations under the UNSC resolutions.

    Bush’s mistakes were presenting the pre-war intelligence to the public inapposite of its actual, circumscribed role in the operative enforcement procedure and improperly characterizing the pre-war intelligence estimates as “evidence” when the normal and proper role of intelligence is indicators. To the credit of the intelligence agencies, the pre-war intelligence correctly indicated Saddam was violating the Gulf War ceasefire. Nonetheless, Bush should have followed Clinton’s precedent in the public presentation: for Operation Desert Fox, President Clinton had cited only to Iraq’s evident noncompliance in terms of insufficient cooperation and deficient account of weapons when he declared “Iraq has abused its final chance” and imputed Saddam’s “clear and present danger to the stability of the Persian Gulf and the safety of people everywhere”. Clinton’s citation of noncompliance as the reason for bombing Iraq matched the operative enforcement procedure. When Clinton endorsed Bush’s Iraq enforcement, Clinton stayed consistent with his compliance-based justification for ODF by citing the threat, heightened by the 9/11 attacks, of Saddam’s “unaccounted for stocks of biological and chemical weapons”.

    Bush cited properly to Iraq’s evident noncompliance with the UNSC resolutions as Clinton had done for ODF. But in a departure from Clinton’s public presentation, Bush also cited the pre-war intelligence, despite that the intelligence could not trigger enforcement. Propagandists pounced on Bush’s error of presentation to shift the burden of proof from Iraq proving compliance with the UNSC resolutions to the US proving Iraqi possession matched the pre-war intelligence estimates. However, the mistake does not change that Iraqi possession was established in the factual baseline of the Gulf War ceasefire as the foundational premise of the disarmament process. The only legal and reliable way to know Saddam had disarmed was Iraq proving compliance with the standard mandated by the UNSC resolutions enforced under US law. Saddam’s noncompliance – including Iraq’s basic failure to declare and destroy all its as-of-Gulf-War WMD under international supervision – was confirmed by UNMOVIC with the Cluster Document, which imputed the continued possession of proscribed weapons by Iraq, whereupon Bush properly applied the operative enforcement procedure at the decision point for OIF.

  10. Fix: OIF, by procedure, was triggered by Saddam’s material breach of the Gulf War ceasefire UNSC resolutions enforced by the President under US law.

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