Today, 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)
Lastly, it’s been pointed out numerous times that non attorneys comment in this blog. I would think that Professor Turley would invite comments of all people and not just from lawyers. As he stated, he took this case not only for the integrity of our Constitution but for the people of this country. I thank him from the bottom of my heart that he has taken up the cause for all of our interests.
Currently the Centers for Medicare and Medicaid Services (“CMS”), an agency within defendant HHS – the Administration specifically requested, “for
carrying out . . . sections 1402 and 1412 of the [ACA], such sums as necessary,” and, “for carrying out . . . such sections in the first quarter of fiscal year 2015, . . . $1,420,000,000.”
This is where the money for the ACA is coming out, instead of a Treasury account established for the purpose of making Section 1402 Offset Program payments to Insurers (account no. 009-38-0126). (Presumably this was so because there was no money in that account since Congress had
not appropriated any funds for Section 1402 Offset Program payments.)
This is what Congress seeks relief from Instead; defendant Burwell said, Section 1402 Offset Program payments “will be paid out of the same account from which the [Section 1401 Refundable Tax Credit Program payments] are paid,” an explanation that she justified on grounds of “efficiency.”
Which means that defendants are using the permanent appropriation meant to pay for tax refunds due under the IRC (31 U.S.C. § 1324) to fund not only Section 1401 Refundable Tax Credit Program payments, but also Section 1402
Offset Program payments, even though (a) the ACA does not permit that permanent appropriation to be used to fund Section 1402 Offset Program payments, and (b) 31 U.S.C. § 1324 expressly states that “disbursements may be made from the appropriation made by this section only for (1) refunds to the limit of liability of an individual tax account, and (2) refunds due from credit provisions of the [IRC],” 31 U.S.C. § 1324(b); defendants’ direct payments to
Insurers under the Section 1402 Offset Program are neither.
The Constitution does not permit such a sleight of hand. Absent enactment of a
law appropriating funds for the Section 1402 Offset Program – and no such law exists – defendants may not legally or constitutionally make Section 1402 Offset Program payments to Insurers.
Obama is taking money out of a account that is meant for funding tax refunds and paying for their offsets, instead of taking money from an account set up in the Treasury Dept, which has no money in it. Since no law exist to do that to pay insurers, it’s illegal. He can’t just unilaterally take money from another fund meant for a specific means and for which Congress did not approve. That is the relief Congress is seeking because they can’t vote to de-fund money from accounts that are already legally appropriated. Basically, it’s illegal and I suspect that the account that was set up to designate those funds is empty and has to be voted on by Congress will be what Congress uses to “de-fund” the ACA. Therefore, no other account can be designated to pay insurance companies for the offset of monies they lose, except this account in the treasury. Just a layman’s account of the complaint filed and the relief requested by Congress. It basically takes their powers away from them and Congress has the purse strings, not the President.
In Federalist Paper no. 51 “James Madison (1751-1836) worries about how to create institutions which would check personal ambition and the “encroachment” of one branch of government by the other but the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man, must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In 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. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions”.
“This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is, to divide and arrange the several offices in such a manner as that each may be a check on the other; that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state”.
I agree with some points that Mr. Appleton made above, in that Professor Turley should not be judged by taking on a case based on Constitutional values and not party affiliations. The founding fathers specifically separated the powers to keep a single act from a single branch from happening. As Professor Turley stated that President Obama acts as a single government when he makes a law, funds that law and defines that law all by himself. It’s not political, it’s about the Constitutional separation of powers that need to be checked. These laws were made by the lone government action one man named Barack Obama.
Again, I’m not a lawyer. I’m just a citizen who loves my country and freedoms. I take personal interest in any one man whom makes a move to encroach upon my liberties as a citizen of this country. President Nixon was Impeached for less and so was President Clinton. Their choices were more a moral break down instead of a illegal move against our Constitution.
It is abundantly clear that some people don’t care about the Constitution at all.
They scream about Executive excess when their opponents use it, but they’re perfectly fine when their side guts it.
They like goring the of, just not their ox.
Unprincipled power-seeking.
Mike Appleton said…
Third, I absolutely detest the routine practice of criticizing lawyers for taking on causes with which one disagrees or clients whom one despises.
I certainly agree with that statement. In fact I have said it, more or less, at least twice (IIRC) on the “House Hires Turley” thread. Your point about searching out a lawyer who will be truthful with you is germane…e.g., if you cannot trust your lawyer, why do you hire him or her? All causes and cases are entitled to an attorney, it is how our system works.
Far be it from me to try to advise Professor Turley how to proceed in taking or refusing a case. He has the knowledge and experience in front of the bench that I don’t have (by magnitudes of scale) …never mind that many cases do not reach the bench at all and are resolved in mediation. You still should have the best lawyer for the task at hand and in this case, that policy has been met. In my previously mentioned 15 odd year duel with the IRS over assessed penalties for alleged fiduciary errors (not over taxes I had not paid, I have paid all my taxes), we won out through protracted re-mediation, by application of technical aspects of the law and regulatory schedules, never going to court per se.. I could not have won without the best lawyers in my area for purpose of tax re-mediation. Honest, forthright, and bulldogs on the technical aspects. Anyone saying I was foolish to do so, or they were foolish to take my case, has never faced a similar issue. Good lawyers are not that hard to locate, and yes, for sure, if one says you case is a slam dunk, find a better lawyer…you need the truth from your advisors, not a cheer leader corps.
I am confident Professor Turley will provide the necessary honesty and advice as the case moves forward, or it it is dismissed he will explain it succinctly to his clients. Old adage aside about killing all the lawyers, if you have no lawyers your are at the mercy of either tyranny or unscrupulous defendants or plaintiffs. If the case is serious, you need to not take a marsh mellow (you & your own naiveté) to a gunfight, so to speak…take the best counselor you can find and afford. And listen to him or her.
The comment prior to mine is a good example of what gives me agita.
MikeA, Thanks again. I like it when people generously offer their personal experiences to enhance their points. I had clients I would not piss on if they were on fire. My benefit was most folks did not know for whom I worked as I kept my work private. But, there were some clients, like attorneys and insurance companies for whom I would often work. Some were real a-holes, and the questions would come “Why do you work for that guy?” Well, because they pay me and I have mouths to feed. With JT’s case it’s not financial, it’s philosophical. For people to have the temerity to impugn his integrity for taking this case disgusts me.
Many of the people opining on this case have no legal experience. JT has a world of experience and I KNOW he would not take a case if he didn’t think it had merit. People who allegedly respected him are saying they no longer do simply because he took a case against their beloved cult leader. It shows a fundamental ignorance of the adversarial process. But, more importantly, it shows an abandoning and lecturing a good and honest man.
What a colossal waste of time, taxpayer money and the resources of a once great mind. That you choose this moment to stand up for principle is mind boggling. I understand your loyalty to the idea of representation and the spirit of seeking justice but… You couldn’t find a better cause or issue to weigh in on than this one?
Rather than try to help to make the law better, you’ve chosen to jump on the bandwagon that wants to nitpick it to death. Are there flaws? Of course there are. Is anyone trying to fix them? Not that I’m aware.
And where has all this concern been regarding presidential overreach in the last decade or more? Who knows, but it sure wasn’t part of your concern then. This doesn’t seem so much about the law and the constitution as it does about rank opportunism.
Disappointing. And I understand just how much my disappointment means to you but you’re the guy who has to look in the mirror every morning.
Tom Hunt
I think the House does not want to impeach President Obama because it would injure their Party irreparably. So they are doing what they think will placate their base, a lawsuit. I think they know full well they have no standing. This should be aggravating to taxpayers who will be paying for this “show trial”. How likely is it that this suit will rein in Presidential powers? How can one branch like the Judiciary tell another branch, the Executive, that they are taking power away from them? It sounds almost like a Judicial coup. Why should the courts have more power than the other two branches?
http://www.bostonherald.com/news_opinion/us_politics/2014/11/experts_suing_an_uphill_fight_for_congress
“Federal judges don’t typically get involved when other branches of government take political brawls to court — and that spells trouble for House Republicans suing the Obama administration.
“It’s difficult for the House to show that it has been injured by the president’s actions because the Constitution sets forth procedures in which Congress has other remedies,” said Eric Lieberman, an attorney who successfully argued a separation-of-powers case in front of the U.S. Supreme Court. “A court will not allow these cases to go forward.”
While the cases may have merit, courts have systematically held that lawmakers don’t have standing to sue other branches of government.
“It’s pretty clear that the House doesn’t have any authority under the Constitution to bring lawsuits that say the president has not carried out the law,” said Alan Morrison, a George Washington professor who won a separation-of-powers case at the Supreme Court. “Only people who have suffered an injury as a result of this…
“If they think the president is abusing his power, they can impeach him, and I predict they may try that,” Lieberman said. “They’ll never get it past the Senate, but that’s something they can certainly try.””
********************************
This issue of standing is perplexing. Why does JT think that the court will hear the case? Who in the House has been injured? Can the Constitution ‘claim’ its been injured here somehow? Something like corporations are people, is the Constitution a person now (sounds silly)? I’m confused about how it can be proven that the House has been injured here.
Professor Turley… I am appalled… I have followed your work and the content / tone of this blog for a number of years and this is, by orders of magnitude, the most glaring right-hand turn both you and this forum have ever taken. Did the Republican party or any of it’s affiliates, donors (known or unknown), subsidiaries, outlets or spin-offs pay you a large sum of money or hit you twice in the head with a concrete demolition hammer, and it spun you in a completely opposite direction and/or into a different belief system than the one we witnessed from you for many years.
I got some indication earlier this year when you mentioned that you had begun taking a dismal view of the Obama administration and it’s lack of ‘doing what they promised’.. But this 180 degree about-face is disturbing….
Even if most are not students of recent, applicable American history, and they are prepared only to venture back to the days when Ronny Raygun played the American President for the cameras, they need to consider what has occured. That history, up to present day, is filled with multiple Presidents taking executive action to begin the process of righting a fundamental wrong that our guiding statutes have morphed into based on the dynamic nature of our republic. They have been followed by NEW statutes to replace those out of sync and we as a people have moved forward. It seems that ‘process’ is now fundamentally and procedurally broken.
Filing suit against the nations President seems to be a publicity stunt – at best. It follows up more than 50 attempts to repeal the act (ACA) by the lower house of the nations congress, either in full or in pieces which has failed EVERY attempt to pass.. That effort is past the point of being a glaring, subliminal message. That message being ‘STOP YOU KLOWNS – MOVE ON TO SOMETHING MORE IMPORTANT”.
And now, YOU’VE taken up this case?? I’m stunned.
Timing for the filing of this suit is also dubious – at best.. On the day the President announced an executive action on IMMIGRATION, you and your rethuglicon clients file a suit focused on the ACA? Curious..but way too obvious..
I guess I should wish you happy sailing on this. Your client will pay you and your folks a LOT of cash for your efforts. They, and you, have NO CHANCE of having ANY impact for at least the next 10 years.. Lots can change in 10 years.. I look forward to welcoming you back into the fold of the rational before then…
Observer:
Your statement that “people bring their beliefs from a less developed world and will not be able to assimilate with people here” is merely another example of the xenophobia with which people have reacted to every wave of immigration in this country since its founding. And history proves that it is nonsense.
I note that there are almost 250 comments on this thread, few of them having anything to do with the actual dispute outlined in the complaint. I would like to address a few concerns raised by the comments. I have been told that it is always good to start with an anecdote.
My very first trial was a final hearing in an uncontested divorce for a client of my boss. Now, the basic logic behind sending a baby lawyer to handle an uncontested divorce is that it is uncontested. I prepared a list of questions, spoke with the client and the client’s residency witness and prepared a thorough and grammatically superb final judgment. My client and her witness testified perfectly at the hearing. I rested and requested permission to approach the bench to present my masterfully drafted final judgment. There was a brief silence, after which the judge inquired, “Counsel, do you intend to ask your client whether the marriage is irretrievably broken?” Immediately grasping the significance of that subtle hint, I made my very first motion to reopen a case to submit additional evidence.
And that leads to my first point, which is that if your lawyer tells you that your case is a slam-dunk, your very next move should be to get a new lawyer. The Complaint filed today alleges that certain actions by the President under the ACA violate both statutory and constitutional provisions and requests declaratory and injunctive relief. It raises a host of issues, none of which have easy answers. What are the limits of executive discretion in the implementation of statutory mandates? What obligations, if any, does Congress have to fund legislative enactments? Should the courts decline to consider the case under the political question doctrine? Are there procedures available to Congress to resolve the apparent impasse without judicial intervention? Since equitable relief has been requested, can the plaintiff establish irreparable harm and an absence of legal remedies? Has Congress historically acquiesced in the face of similar unilateral action by previous presidents? Does the House even have standing to bring the action?
My second point is that the motives of the House in bringing the lawsuit are immaterial if the Complaint raises justiciable issues of law. Indeed, a plaintiff may harbor ill will or even hatred toward a defendant. The only concern of the court is whether it has been presented with a genuine controversy which it has the power to adjudicate.
Third, I absolutely detest the routine practice of criticizing lawyers for taking on causes with which one disagrees or clients whom one despises. In the forty years I have been working in the legal trenches, I have found that the overwhelming majority of lawyers with whom I have dealt went to law school because they believed in the rule of law and were committed to the notion that every human being ought to be treated equally under the law. I have also concluded that most lawyers continue to believe in those ideals even after they experience failures of justice. Most people who follow this blog are aware of my opinion of the current denizens in the House of Representatives, but that opinion has no bearing on whether the case is meritorious. I do have some thoughts on that issue, but reserve them for another post. The point is that I resent the tendency to judge lawyers by the clients they represent or the causes they advocate.
I trust that most commenters have gotten the partisan rancor out of their systems at this point and that further discussion can focus on the issues actually presented in the litigation. That may be a vain fancy, but hey, I’ve always been a hope and change kind of guy.
http://www.prnewswire.com/news-releases/american-tech-workers-successfully-win-standing-to-sue-on-alleged-illegal-issuance-of-stem-related-work-authorization-283535001.html
http://dailysignal.com/2014/11/21/white-house-justice-sought-stop-attkissons-reporting-fast-furious-scandal-documents-reveal/?utm_source=twitter&utm_medium=social
This president is damaging the country by encouraging mass immigration , exactly what Jefferson had warned against , as people bring their beliefs from a less developed world and will not be able to assimilate with people here . Immigration has to be legal and controlled to encourage the immigrants who are willing to , and capable of , assimilating with our system . It seems like this president has no regard for the direction given by the founding fathers , directions due to which the US is what it is . He does not understand how serious of a problem he has produced , as reflected by his mocking of republicans , who he needs to run the country . So sad that he has no clue …just a bubble of arrogance ..
Paul , nice post !
Fully agree !
Inga, you said…
The basic gut level drive is to get rid of the ACA without having anything to replace it with.
Not exactly true…both parties, from John Kerry (2004) to Daryl Issa (2013), and others, have proposed a far more workable solution, with all the necessary remedial features of the PPACA without the hassle or need to create a new agency department or database, etc. I’ve commented on it several times here and elsewhere.
Results: crickets.
I have no intention of describing it again.
Constitutional principles mean something. I applaud the good Professor for taking this on. I am confident by many of the rants above that he will loose friends over this. But it needs to be done.
Bush took us to war in Iraq with bad intel, perhaps he lied. Congress bought those lies and gave him permission, no constitutional principles violated here. Big difference with what is happening with the present lawsuit. After 8 years of Repos and war, the people spoke and threw the Repos out of power, completely, both houses and a Prez. 2 years later the house was lost by Demos back to Repos. Why? because the Demos over stepped their authority. Then 4 years later the Demos lost the Senate. Why, because the lies of the Demos were catching up. It is a perfectly constitutional principle for Congress to not pass any legislation. It is not Constitutionally permissible for the Prez to then make up his own laws or spend money not allocated by Congress. Period. If you don’t like what Congress is doing, vote the bums out.
Lordy, what a fun site!
Nick, I’m surprised nobody has played the race card.
And to be perfectly clear, I have nothing agains Hawaiians.