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)
Thanks for a good discussion Prarie Rose, gotta run some errands. I wish you’d comment more often. 🙂
Scotusblog’s Lyle Denniston said,
Given the complexity of modern government operations, very few of the laws that Congress passes are completely self-executing; most if not all of them require regulations to put them into actual effect. And writing regulations is the business of the federal agencies. An array of government agencies have been working for more than three years, for example, to write the rules for the new Affordable Care Act – the vast new law regulating the entire health care financing system.
The Supreme Court just last month went a long way toward requiring federal courts to trust the government agencies that execute the laws to interpret for themselves just what authority Congress has given them in their areas of official activity. What an agency decides is the range of its power, that ruling said, should be given considerable deference by the courts.
Very telling in that decision in the case of City of Arlington, Texas, v. Federal Communications Commission is that it was written by Justice Antonin Scalia, the Court’s strongest believer that the courts should be very strict in following the letter of the laws that Congress passes. The actual text, not what someone said about it, is what controls, he has said, over and over. Scalia, a former professor of administrative law, seems quite tolerant of agency discretion. [Constitution Daily, 7/10/13]
Constitutional scholar Simon Lazarus says,
“The relevant text requires that the President “take care that the laws be faithfully executed.” Scholars on both left and right concur that this broadly-worded phrasing indicates that the President is to exercise judgment, and handle his enforcement duties with fidelity to all laws, including, indeed, the Constitution. As McConnell himself notes, both Republican and Democratic Justice Departments have consistently opined that the clause authorizes a president even to decline enforcement of a statute altogether, if in good faith he determines it to be in violation of the Constitution. But, McConnell contends, a president cannot “refuse to enforce a statute he opposes for policy reasons.” While surely correct, that contention is beside the point.
The Administration has not postponed the employer mandate out of policy opposition to the ACA, nor to the specific provision itself. Thus, it’s misleading to characterize the action as a “refusal to enforce.” Rather, the President has authorized a minor temporary course correction regarding individual ACA provisions, necessary in his Administration’s judgment to faithfully execute the overall statute, other related laws, and the purposes of the ACA’s framers. As a legal as well as a practical matter, that’s well within his job description. [The Atlantic, 7/17/13]”
“They should clone you Prarie Rose.”
🙂 That’s sweet. 🙂
“Prarie Rose, it IS a partisan Congress.”
You are right, and it is unfortunate.
“There won’t be any votes from Democrats to impeach this President. To wait for Democrats to sign on to this is futile, they won’t, because they see it as a partisan effort to destroy a Democratic President.”
That’s a silly reason not to follow the law–just because someone is from the same party.
“A Congress in endless wars and letting the country go to hell.”
This is the fault of everyone in Congress. Not continuing this lawsuit will not stop it if Democrats don’t also sue the President for violating the Constitution regarding war. Not continuing this lawsuit will not stop the country from going to hell; I think it will actually help the country stay on that very course. If any president is allowed to get away with violating the separation of powers (and Bush already has! grrr), then we just continue on that very path.
“Do we pay have endless power struggles, don’t they OWE it to us as our elected representatives to TRY to do the county’s business?”
Yes. But, the country is filled with highly gerrymandered districts, which in turn elect highly partisan politicians who want nothing more than to get power. They are not interested in doing anything else but get what power they can (and if that means handing some power over to the president so they can ensure their own re-election, then that’s what they’ll do).
“Or do conservatives think that the country’s business is to only destroy each other’s Presidents?”
I am in agreement with you; I don’t think President Obama is a president just for the Democrats. He’s OUR president and I am very concerned about how he is treating that office and the rest of our system of government.
“I can’t tell you how many times I’ve heard “He’s not MY President”.”
That’s irrational and those who say it need to rethink how divisive and unhelpful that kind of comment is.
““Defund the Executive” as Michelle Bachmann so honestly said to Cavuto.”
What does that even mean? I missed it on the news. Again, I think Michele Bachmann is one of those politicians who says stuff to please her constituents without really thinking about what she’s saying overall.
If defunding the executive means ending all those payments to dictators in the ME (like Karzai), then I’m all for it! 😉
Nooooo, you don’t want to see Nancy Pelosi’s “stamens”. 😉 That should be “statement”.
http://www.democraticleader.gov/newsroom/pelosi-statement-republicans-suing-president/
Prairie Rose, here is Nacy Pelosi’s stamens on the lawsuit.
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Whoa Observer, are you saying Boehner is an alcoholic and isn’t seeing things clearly? That’s sort of unkind.
Prairie Rose,
You don’t believe they “heard” what he was going to do? Do you know that transcripts of the SOTU speech are sent out in advance? That they know exactly what he will say and when he will say it? That nothing about their standing ovations are spontaneous; it’s carefully choreographed and that the cameras are prepared to spotlight certain members?
Dearth: “the state or condition of not having enough of something”
Intellectual: “of or relating to the ability to think in a logical way”
Integrity: “the quality of being honest and fair”
I wasn’t insulting their integrity; I was giving them a compliment. I’ve ceased engaging the many ‘personalities’ in this blog that would actually deserve the term absence, instead of dearth. Regardless, I look forward to being proven wrong and you convincing them to adopt your position.
” There won’t be any votes from Democrats to impeach this President. ”
Five Democrats voted to impeach President Clinton on the first three articles of Impeachment, although only one supported the abuse of power charge.
Never say never. 🙂
Life is not that simple Inga, what if the other person is incapable of seeing things differently, not because of cognitive deficits but because of psychological coping mechanisms that can distort reality. Have you heard about denial in alcoholics?
on 1, November 22, 2014 at 1:24 pmPrairie Rose
“I don’t think they really “heard” what he was going to do, just like Republicans didn’t hear or think about what Bush wanted to do with the Patriot Act, etc.
I don’t believe there is a dearth of intellectual integrity in those with whom I discuss things–some people are just harder to convince than others. 🙂 Insulting a person’s integrity is no way to have a civil discussion or have a dream of a chance of winning them to your position.”
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They should clone you Prarie Rose. 🙂
so if the lawsuit is not successful and there is no consequence to any of the other violations of the constitution, then does that mean this is the start of the end of a nation of laws?
Prarie Rose, it IS a partisan Congress. There won’t be any votes from Democrats to impeach this President. To wait for Democrats to sign on to this is futile, they won’t, because they see it as a partisan effort to destroy a Democratic President. That is why they, the Republican Congress should seriously think about what they are doing here, as Cavuto said several times. Is this what we want? A Congress in endless wars and letting the country go to hell. Do we pay have endless power struggles, don’t they OWE it to us as our elected representatives to TRY to do the county’s business? One filibuster after another after another. So then what does Ried do? Blocks their bills from the House.
Or do conservatives think that the country’s business is to only destroy each other’s Presidents? I can’t tell you how many times I’ve heard “He’s not MY President”. A majority of Americans voted for him twice and per the laws of our country that makes him every American’s President. Democrats aren’t blameless in demonizing Bush either. But never was there such blatant attempts to “Defund the Executive” as Michelle Bachmann so honestly said to Cavuto. One thing about Bachmann she let’s things out of the bag, which perhaps her fellow Republicans wished she wouldn’t have come right out and said aloud.
@Aridog ~ thank you. I want to look the Anti-Deficiency Act (codified in 31 CFR) up and see how or if it applies and just give my opinion, if that’s ok. In the meantime, I’m going to go do something dumb first, that’s see ‘Dumb & Dumber to’, with my two beautiful daughters. 🙂
Squeeky Fromm Girl Reporter
I am conservative on social stuff, and progressive on economic stuff.
You aint got no home:
Olly,
“Prairie Rose,
You realize you’re trying to express concern about executive overreach to a constituency whose representatives gave a standing ovation to Obama when he vowed to make them irrelevant. There is no amount of reason that will penetrate that dearth of intellectual integrity.”
I don’t think they really “heard” what he was going to do, just like Republicans didn’t hear or think about what Bush wanted to do with the Patriot Act, etc.
I don’t believe there is a dearth of intellectual integrity in those with whom I discuss things–some people are just harder to convince than others. 🙂 Insulting a person’s integrity is no way to have a civil discussion or have a dream of a chance of winning them to your position.
@Inga
You said: “. . .perhaps the Democrats in Congress do not believe the President overreached with the ACA, why would they sign on to something they didn’t believe?”
Hmmm. Perhaps the Democrats in Congress do not believe in anything except the Democrats being in Congress and being in the White House. . .
Squeeky Fromm
Girl Reporter
“perhaps the Democrats in Congress do not believe the President overreached with the ACA, why would they sign on to something they didn’t believe? Perhaps they think the ACA itself provides the President discretion in implementation.”
Is that their belief? I have not heard any Democrat rebut the lawsuit as without merit? If you have, please link to the story.
I have not heard that the ACA contains anything allowing the president to change its contents or implementation timeline whenever he wants to.
Does it? If so, what section?
Also, even if the bill does contain such a thing, does that not automatically make it violate the Constitution and the separation of powers?
@JetTexas
Thank you! I have been thinking about starting back up to blogging on a general political basis. The problem is that I am a political hermaphrodite. I am conservative on social stuff, and progressive on economic stuff. Which being, that tends to irritate everybody.
Squeeky Fromm
Girl Reporter
JetTexas said ….
He can’t just unilaterally take money from another fund meant for a specific means and for which Congress did not approve.
JetTexas…you are a dangerous person! 🙂 You’ve done a good job of researching the issues here. Your comment sentence I cite makes me wonder if the Anti-Deficiency Act (codified in 31 CFR) is applicable to this fund diversion? My experience tells me it is, since I have been subjected to audit under it, however IANAL. Anyone, lawyer or not, who can illuminate the issue regarding the Anti-Deficiency Act, please do so. I am aware that in the entire 100+ year history of the Act, no one has been indicted under it…all discipline has been done through administrative means following a negative audit finding. There is a mechanism for resolution without court time, but I am uncertain it could be accomplished outside a courtroom for this issue with PPACA and the Executive Branch.
Inga,
I never said it was unfair to question at all. It seems one-sided to question the Republican’s motives as though the lawsuit was without merit against a blameless president. That’s how the comments about motives come across.
You are absolutely right that the Congress is full of cowards. However, I wouldn’t want the Republican Congress to impeach him–I would want a united Congress to impeach him. Executive overreach should not be a partisan issue.