At 10 a.m. tomorrow morning, Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia will hear argument on the motion to dismiss filed by the defendants in U.S. House of Representatives v. Burwell, et al., No. 1:14-cv-01967 (D.D.C.). The defendants are the Departments of Health and Human Services and Treasury, and the secretaries of those two executive branch agencies. The Administration is seeking to prevent the Court from reaching the merits of this historic case, which was authorized by an affirmative vote of the entire House of Representatives on July 30, 2014, and which the House filed for the purpose of protecting our constitutional structure.
The House’s underlying complaint asserts two sets of claims, both of which concern the Affordable Care Act, and both of which allege that the defendants have violated the Constitution. These violations run to the very foundation of the separation of powers doctrine that underpins our entire system of government because they usurp Congress’s powers to appropriate public funds and to legislate. The first five counts concern defendants’ ongoing payment of billions of dollars to insurance companies. These payments were ordered by the Administration despite the fact that Congress, which has the exclusive constitutional power to appropriate public funds for expenditure, (i) rebuffed the Administration’s specific request for an annual appropriation of $4 billion in FY 2014, and (ii) has never at any other time appropriated any funds for such payments. (Such payments to insurance companies currently run at approximately $300 million per month, and are estimated by the Congressional Budget Office to total $175 billion over the next ten fiscal years.)
The last three counts concern the defendants’ unilateral rewriting of specific provisions of the Affordable Care Act, namely, provisions that impose mandates on certain employers and establish a deadline by which such employers must comply with those mandates. The executive actions addressed in the Nullification Counts are estimated to cost federal taxpayers at least $12 billion.
Tomorrow’s hearing does not address the constitutionality of defendants’ actions. Rather, it only addresses the threshold question of whether the House has a right to have its claims heard in federal court, that is, whether a house of Congress has “standing” to bring this case. This threshold question is extremely important because Congress’s “Power of the Purse” is a linchpin of our divided power system of government. The power to decide which federal programs shall be funded, and which shall not, is fundamental to Congress’s ability to exercise a check upon the vast powers of the executive branch. Defendants’ argument that the court cannot hear the House’s claims in this case is extremely dangerous for our system of government, and for the American people whose liberty ultimately rests on the ability of the three branches actively to check each other. This is so because, if the executive can spend public funds in the absence of an appropriation from Congress (as defendants are doing here), and if the House is barred from getting into federal court to challenge this action (as defendants argue here), then Congress’s ability to use the “Power of the Purse” to check the executive largely disappears.
I will be joined in the courtroom by an experienced team of attorneys from the Office of the General Counsel of the House: General Counsel Kerry Kircher; Deputy General Counsel William Pittard; Senior Assistant General Counsel Todd Tatelman; and Assistant Counsels Eleni Roumel, Isaac Rosenberg, and Kimberly Hamm. Their collective knowledge of legislative and executive powers is unparalleled, and I am honored to represent the House with them.
We will make a brief statement following the hearing outside the courthouse.
Jonathan Turley
Lead Counsel
@Olly
Good luck on that question. I will be pleasantly surprised if you get a definitive answer.
Squeeky Fromm
Girl Reporter
“Do you not know that many or even the majority of judges are partisan these days. One can often tell how judges will rule based on who appointed them.”
swarthmoremom,
Then what decision do you believe a “non-partisan” judge should provide?
Hmmm. Like I said. Some people can not see anything except through partisan political lenses. To them, everything is partisan.
Squeeky Fromm
Girl Reporter
Do you not know that many or even the majority of judges are partisan these days. One can often tell how judges will rule based on who appointed them. Only once in a while does a refreshing surprise occur. Wake up!
Once again, a Democratic Party Zombie weighs in, comments, and personalizes the constitutional question into an “Us versus Them” partisan thing. If Bush or any other Republican was President, then I presume this person would be all for the courts ruling against the executive branch. But since the President is a Democrat, then they think the judge being a “Bush appointee” is relevant.
No conception of a “principle” being at issue. Everything is a partisan political battle. What a waste of a mind.
Squeeky Fromm
Girl Reporter
If you are granted standing – a big IF – what do you expect the court to do? We already know that Obama’s view of presidential powers would make John Yoo blanch. When faced with a Constitutional crisis, the Supreme Court may back down again because Obama gives every indication that he will defy the court as well as Congress. I think it’s pretty clear by now that he’s playing a “chicken” game with Congress” “OK, impeach me!” So be it.
http://www.washingtonpost.com/local/judge-rejects-request-to-block-force-feeding-of-guantanamo-detainees/2013/07/16/ac07a4ac-ee46-11e2-bed3-b9b6fe264871_story.html “A federal judge on Tuesday rejected the request of three Guantanamo Bay detainees on hunger strike to block the U.S. military’s practice of force-feeding.
U.S. District Judge Rosemary M. Collyer said federal courts are prohibited from ruling on detainee treatment and conditions of confinement at the detention center in Cuba.
“There is nothing so shocking or inhumane in the treatment of petitioners — which they can avoid at will — to raise a constitutional concern that might otherwise necessitate review,” she wrote.” This Bush appointee often rules for the wrong side.
The right to private property is nullified when private property is confiscated from one individual and awarded to another separate individual.
Private property includes money as “moveable” or personal property.
Marxist “redistribution of wealth” is antithetical and unconstitutional.
Private property may not be confiscated and made the property of another individual.
Free individuals have the right to private property. Money taken from one man and given to another man is confiscation of private property and is clearly unconstitutional.
All forms of pubic assistance and substance programs are unconstitutional confiscation of private property. Direct welfare payments and indirect payments as affirmative action hiring and Medicare, as examples, are unconstitutional confiscation of private property.
Welfare, affirmative action, quotas, food stamps, utility subsidies, Affordable Care Act, Social Security, Medicare, Medicaid, WIC, HAMP, minimum wage, HUD/FHA, etc. are all unconstitutional confiscation of private property.
Taxation may occur to fund legitimate governmental operations, not to award the private property of one individual to another individual. Legitimate governmental operations were “established” by the Founders and delineated in the Preamble as Justice, Tranquility, Common Defence, Promote General Welfare (General Welfare is not individual welfare, including roads, water, sewer, utilities). Everything else transpires as freedom and free enterprise without interference by government. Government is limited to security and infrastructure. Charity is private industry.
The American thesis was and is freedom and self-reliance.
I hope your reasoning and content are received with an open mind. Best of luck for the future of the democracy!
“You say: “There are persons who have no money,” and you turn to the law. But the law is not a breast that fills itself with milk. Nor are the lacteal veins of the law supplied with milk from a source outside the society. Nothing can enter the public treasury for the benefit of one citizen or one class unless other citizens and other classes have been forced to send it in. If every person draws from the treasury the amount that he has put in it, it is true that the law then plunders nobody. But this procedure does nothing for the persons who have no money. It does not promote equality of income. The law can be an instrument of equalization only as it takes from some persons and gives to other persons. When the law does this, it is an instrument of plunder.
With this in mind, examine the protective tariffs, subsidies, guaranteed profits, guaranteed jobs, relief and welfare schemes, public education, progressive taxation, free credit, and public works. You will find that they are always based on legal plunder, organized injustice.” Frederic Bastiat “The Law”
Good luck, Professor Turley. Firmly defending the separation of powers will benefit us all.
As for the particular issue at stake, I pray that Obamacare will eventually be repealed. No one can afford it without subsidies, a fact that even the creators admitted. It is a travesty to take affordable health care away from anyone, no matter how noble the cause. You do not harm one group of people in a misguided effort to help another.
Best of luck and let us hope that the judiciary doesn’t “punt”…
http://www.nytimes.com/2015/05/27/world/middleeast/hamas-is-accused-of-killing-and-torturing-palestinians.html?_r=0
Thank you for the clear and concise update. We are watching this with great interest!
Best wishes! Separation of powers is supposed to be basic and should be heard.
Let’s chill out on the noble character of this cause. Congress is the crats for the demos, and who actually believes congress represents the masses?
The practical results of jT (not here but later) winning in court actually has negative effects on persons daily life. But he’s choosing the principle of persevering the existing system.
As a “public interest” law professor this is a judgment that I think is fair to question. Where was JT when Al alwaki father/grandfather went to Washington??? That was one persons life, but when the system lets it happen to one, the precedent is set for another and another.
Public interest means founding fathers’ interest?
Reblogged this on Scoop Feed.
Best of luck. The administration had a bad day yesterday, maybe they will get another one.
The barbarians are at the gates. I wish you every success as you battle to preserve our wonderful Constitution.
JT,
I’m certain you will have 100% support from those that love our constitutional republic!
Buona Fortuna!