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
Here is the problem – you are working under the assumption that our Congress is not a dysfunctional mess. They are notorious for passing unfunded or underfunded mandates and yet expect everything to work perfectly or they purposely don’t fund bills hoping to have their cake and eat it too by saying they voted for something and passed it but by not funding it – they get what they really want (kill the bill) and hope their constituents don’t figure it out.
Nick:
I usually attempt to avoid getting involved in mudslinging because responding to puerile rants adds nothing to rational discourse. But your comments concerning swarthmoremom and those who have chosen not to participate any longer on this site are gratuitous, presumptuous and beyond the pale. I realize that you fancy yourself an expert on the varieties of human experience and enjoy “educating” newcomers with what you erroneously perceive to be penetrating insight into the motives and personalities of people whom you have never met. However, the effect is boring and embarrassing.
You have somehow come to think of yourself as a sort of censor deputatus charged with passing upon the intellectual purity of commenters. It is a position to which, to my knowledge, you have not been appointed and for which you are ill-suited in any event. The boorishness has gotten old and needs to stop. SWM has made valuable contributions to this blog over a period of years and has refrained from personal assaults on others. Your remarks about her were rude and meaningless.
@Olly
I didn’t think she would give you a straight answer. She is a lot like the other Demzombie here, “she who will not be named”, who will not answer direct questions, either. They rightfully sense that there is a trap. If it is OK for Obama, then they would have to agree that it is OK for the next Republican President, too. Principles are such a drag on partisanship.
Squeeky Fromm
Girl Reporter
Best of luck. If Congress is not allowed to use the power of the purse to check the executive branch for unconstitutional spending and from rewriting the laws after they have been enacted and in just completely ignoring the separation of powers…….. then the future of our country is at dire risk.
The people elect their Representatives and Senators to (supposdily) enact our wishes in laws and in appropriating OUR tax money. The reason for the house and senate is to have a spirited debate and have various viewpoints of our widely diverse country represented.
If the President or the bureaucrats can bypass Congress and the will of the people…..we might just as well be a dictatorship.
This is so very important to all of us!!!!
SWM is a blind ideologue Dem operative Hillary lover. She knows know Mexican food and flicks. Other that that she is a bore.
SWM loved it when this place was run by mean spirited, left wing, fascists. They took their ball and went elsewhere after getting their pompous asses kicked. They have their own LITTLE echo chamber now and it’s as stale as the people who run it. “Be careful what you wish for.”
Best of luck with your case.
I trust that the Republican Congress, who generally seem to favor a monarchy, will remember this effort the next time a Republican wins the presidency, assuming that ever happens again.
Would love to see Congress start doing their job.
My having, once again, the very thought “manchurian candidate” seems undignified on this site…it just seems so….well, evil is a difficult word.
Best of luck. Our constitution applies to all of us or none of us. Which is it?
Squeeky,
I too would like SWM to take the opportunity and demonstrate she is not about partisan politics.
Mike A. is absolutely correct. We have a Legislative Branch that has completely abandoned a commitment to the constitutionality of things for the re-electability of things. This is now generational which means we have a deeply divided electorate that WANTS what the administrative state is selling. Impeachment is the right thing to do but it will NOT be seen as such by voters. Just look at the idiots endorsing Bernie Sanders and you’ll know this is not a country that has a clue why a constitutionally limited government is actually in their best interests.
Sorry, I wasn’t finished.
…it is treated as POLITICAL because we have a legislative body more concerned about their careers than the oath they took.
Paul,
Impeachment is a CONSTITUTIONAL ACT
Olly – I would posit that the ability to impeach is Constitutional but the actual impeachment is political.
Thank God for you Jonathan.
God Speed.
It may not be a partisan issue for Professor Turley, but it certainly is for the Republican House. Did even one Democrat sign on to this lawsuit?
After reading some of the comments, I’d like to remind everyone that this is not a partisan issue. In order to defend and keep a democracy republic, we must limit the powers of the Executive branch and each branch for that matter.
Let us all agree that whomever a president appoints to a federal court judgeship is most likely to be of that political persuasion and partisan to that party. That’s a no brainer.
Paul Schulte:
Debating relative degrees of unconstitutional conduct is not a particularly useful enterprise. Do we impeach over a little bit of unconstitutionality, or does it require a moderate or even a severe amount? What is the standard? If there are indeed not enough votes to convict, that means that the requisite number of Senators do not believe that the President is acting unconstitutionally. What it also means is that much of the debate concerning this President is political and not a matter with which the courts ought to become involved.
Mike – impeachment is a POLITICAL ACT. There are not enough Democratic Senators with the intestinal fortitude to impeach the President.
It would be extremely dangerous if we took away the “Power of the Purse,” from Congress. Without this separation of power, the Executive branch would have unfettered powers that could lead to dictatorial consequences and the degraded powers of the 3 legislative branches of government.
I pray you can argue to keep this from happening.
http://en.m.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution
Really? Bush authorized torture, of course torture is Constitutional….right?
Inga – at the signing of the Constitution, torture was used regularly. So, it was neither cruel nor unusual.