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
Paul Schulte:
Congress is a victim of its own timidity. The legislative branch has been ceding authority to the executive branch for decades, primarily in order to avoid accepting any responsibility for policy failures. It has actually created the imperial presidency. That is why our elected representatives are afraid to even vote on questions of war.
If Rep. Boehner truly believes that the president has become a dictator, he has more than enough votes in the House to pass articles of impeachment and a Republican controlled Senate to conduct a trial.
Mike – as you well know, there are not enough votes in the Senate to convict him. It would be a senseless act.
If the President actually knew the Constitution, as a Constitutional lecturer, he would know what he is doing is unConstitutional and should stop. We have never had a President this unConstitutional.
I wonder why the Congress isn’t in an uproar over the involvement of our military in the Mideast conflicts without authorization from them? It seems that they are just fine with letting Obama overstep his authority in the case of armed conflict. Hypocritical much?
SWM, yep, have fun planting!
@SWM
I have already explained why you have difficulty posting here. It is a website which deals with law, and legal principles. As a Zombie Democrat, you don’t really have any set principles, except, “Win, and get my way.” This will always tend to put you in a intellectually precarious situation.
Which is a shame. because I believe you really do have a brain, and I also think you are capable of intelligent thought. But, you have hobbled yourself in an existential sort of way, where you exist as a Democrat before develop a real intellectual “essence.” Sooo, just try giving Olly the definitive answer he asked for. Try stating, as a general principle, what you believe about the legal issues in the lawsuit, without thinking about, or mentioning the political parties.
If you can’t do this simple exercise, then you really, sincerely need to ask yourself, “Why???” I am pulling for you here on this! I believe you can do it, if you will only try. . .
Squeeky Fromm
Girl Reporter
They are too cowardly to impeach the President, especially with 2016 coming. So they do the thing that will cost the nation how much money to take it to court? Weak, cowardly, hypocritical House.
Thanks, Annie. Headed out to buy some plants. The group is small and does not appreciate any outside agitators such as myself .lol
I am pretty much convinced that standing is an insurmountable problem in this case, regardless of what the district court judge may rule. Congress has a variety of weapons available to rein in a president it views to be out of control. The House controls the money. The Senate controls appointments. And the Constitution provides the remedy of impeachment for a president who usurps legislative authority or otherwise acts beyond constitutional limitations. In addition, I am skeptical of the wisdom of pursuing a policy that might well lead to the legislative and executive branches embroiling the courts in what are most often political battles of will.
Mike – if the President is spending monies not allocated by the Congress, then Congress no longer has a purse.
Mike,
I agree that standing will be an issue, or at least in the top court. But it does lead to a stark remedy when Congress must resort to all out impeachment to remedy a single constitutional issue that could be debated? Rather than a full blown constitutional crisis a mitigation could be less drastic in utilizing the courts. Yet, I agree it would be cumbersome for review by the courts to devolve into political bickering on a frequent basis.
If President Clinton’s antics merited sufficient cause to impeach in the House, surely the multitude of oversteps of power by President Obama should suffice.
SWM,
I was the one that asked you question for which you had no answer. I challenge you to provide ONE example where I’ve demonstrated a partisan agenda. Phone a friend if you need to….I’ll wait.
SWM, this blog is definitely less interesting without your commentary. We so often get the same stale right wing bloviators here nowadays.
Maybe it is a good opportunity for me to remember why I don’t post here much and rarely read this blog. It is filled with right wing republican partisan posters such as yourself that point the finger at others for being “partisan” while maintaining an extremely partisan agenda.
@SWM
This should be a “Learnable Moment” for you. All the other little kids can discuss the right and wrong of the Executive Branch spending money without Congressional allocation, but there you are, sitting in the corner, and unable to join in because you can’t answer the question without an analysis of which party is sitting in the executive branch. Your real answer, if you were forced to give one under hypnosis, would be. “It depends on the party. If it is Democratic President, then it is OK, and if it is a Republican President, then it is not OK.”
But deep inside yourself, you know such an answer would expose you to ridicule, and taunts. Sooo, there you sit. Snarking from the sidelines because your insides are all twisted up. Maybe this is a good opportunity for you to meditate on how messed up your intellectual functioning has become???
Squeeky Fromm
Girl Reporter
“Standing coud only occur is all members of the House of Representatives agreed to file the lawsuit.”
BarkinDog2uall,
So you truly believe the framers established a system of government that would require a unanimous vote in the House to check what they believed to be an unconstitutional abuse of power? You do realize they just got rid of one King and not likely to grant power to create another?
Do you want the legislative branch to be able to check the executive or just this executive?
It’s all moot because the agencies, laws and programs that nullify the right to private property and effect Marxist “redistribution of wealth” are irrefutably unconstitutional.
The Founders, in 1789, practiced what they wrote. Confiscation of private property and Marxist “redistribution of wealth” in any and all forms did not exist and was not constitutional nor practiced. Redistribution in any and all forms was not constitutional in 1789 and is not constitutional now.
The right to private property is nullified when private property is confiscated from one individual and awarded as the private property of another individual.
Charity was pursued as free enterprise.
Marxist “redistribution of wealth” was effected under the constitution and practiced by the Founders as charity.
The scope of this debate will be reduced and the focus enhanced when any and all forms of confiscation of private property and Marxist “redistribution of wealth” are eliminated.
Well,if the goal was not to win in court why bother with the suit? Hope you Texans are not afraid of being invaded by FEMA, and can appreciate some federal assistance. lol
@Olly
Yep. Just like I thought. No definitive answer. ROTFLMAO!!!
You see, just like with quantum physics, for Democrats, principles and politics are entangled. There is no answer which exist outside of one’s partisan views. Such an answer, a thing that most of us call a “principle”, can’t exist in their world. Everything is “win and get my way, win and get my way, win and get my way.”
Squeeky Fromm
Girl Reporter
Therefore, of course, she will agree to hear a case that republican house wants her to hear. That is a no-brainer.
Need a new key board….My point is that judges are too predictably partisan. Do you think it is a coincidence that this judge was appointed by W?
swm – you get luck of the draw at the district level and at the appellate level. En banc for the Ninth Circuit is not ALL the judges, it is still luck of the draw.
OOOPS!
swarthmoremom,
Then what decision do you believe a “non-partisan” judge should provide? T
When this lawsuit was filed my first comment was that there can be no Standing to Sue. Why, because the House of Representatives is a body made up of a collection of members voted in by each District. If I was against the lawsuit and I was a member of Congress I would file an objection and probably a motion to intervene. John Boner cannot speak for Claire McCaskill. Standing coud only occur is all members of the House of Representatives agreed to file the lawsuit.