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 Houseās 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 Congressās powers to appropriate public funds and to legislate. The first five counts concern defendantsā 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 Administrationās 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 defendantsā 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.
Tomorrowās hearing does not address the constitutionality of defendantsā 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 āstandingā to bring this case. This threshold question is extremely important because Congressās āPower of the Purseā 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 Congressās ability to exercise a check upon the vast powers of the executive branch. Defendantsā argument that the court cannot hear the Houseās 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 Congressās ability to use the āPower of the Purseā 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
http://www.wsj.com/articles/house-votes-to-authorize-boehner-to-sue-obama-1406760762 “In a 225-201 vote, the House told Mr. Boehner (R., Ohio) to move ahead with the suit. House GOP leaders have said they would focus the suit on the White House’s decision last year to give employers a one-year reprieve on enforcing a requirement under the Affordable Care Act that they offer health coverage or pay a penalty. The requirement was delayed until 2015, and the White House then revised the health law further by saying employers with between 50 and 99 full-time workers wouldn’t have to comply or pay a fee until 2016.
Five Republicans joined Democrats in voting against pursuing the lawsuit. No Democrats voted to move forward with the suit.” You piqued my interest, anobserver.
SWM – for the House that would be a bi-partisan vote.
Professor Turley wrote:
“…which was authorized by an affirmative vote of the entire House of Representatives on July 30, 2014,”
That is not a truthful statement. Is that what we seek in our advocates – dishonesty?
Knockout punch by the champ, Squeeky Fromm!
@bettykath
You said, “Upper right is a list of most recent posters. Mike was listed when I read the article. Wouldnāt have bothered with the comments otherwise.”
Here! Let me translate that for you!
“I try not to read stuff by people who disagree with me, because then I have to think about what they say, and analyze it, and try to figure out intelligent responses, and all that thinking just makes my head hurt. Sooo, it’s just easier to read stuff I agree with, and resort to name-calling and snark when I can’t.”
You’re welcome!
Squeeky Fromm
Girl Reporter
Paul, “How did you see that Mike had posted without seeing what he had posted?”
Upper right is a list of most recent posters. Mike was listed when I read the article. Wouldn’t have bothered with the comments otherwise.
bettykath – it is nice to have standards.
Mike A-
I’m sure you give the same lecture to the folks over at FFS when they take their “rude and meaningless swipes” at Professor Turley, this blog and the people who still comment here, right?
Interesting. Separation of Powers?
I hope Congress is able to keep its “Power of the Purse”. If it does not, then I hope it will wake up more Americans to the growing rot within Washington D.C. Absolute power corrupts, period.
Good luck on your endeavours, Jonathan Turley! š
“The greatest loss to the American people is and will be due to the fixation on the procedures of government and not the issues.”
Isaac,
The greatest loss to the American people’s liberty has been and will continue to be their fixation on the issues and not the procedures of government. We are polarized by issues because we have no idea what government SHOULD be doing in the first place. As long as the people look to government to be their life’s problem solvers then the sole focus will be on electing those “promising” the best solutions regardless of the constitutionality of the effort. These folks elected to government aren’t made with special DNA that make them better problems solvers. They are simply people with the ambition often lacking in society today and ambition DOES NOT equal competence. Those elected MUST adhere to the constitutional procedures as the only true check on their inherent flawed nature. In short, trust government to do the right thing ONLY so far as they PROVE they are competent enough to stay within rule of law.
The greatest loss to the American people is and will be due to the fixation on the procedures of government and not the issues. At this point in the history of the US the government is the most polarized and purchased than at any previous time. Perhaps a President that was independent of either party would be the best fit. That way there would be a true separation of powers between the three parts. This might lead to a more democratic assembly of political points of view in the development of more parties. However, first the President should be separated from the two existing monstrosities.
issac – you are living in cuckoo land. No one independent of the two parties will be elected.
Best of luck Professor, and to the whole team.
MikeA, I treat both men and women the same. I have been much tougher on SWM in the past. She is a tough woman who does not need men to come to her assistance. The old guard here were, like yourself, paternalistic, always sweeping in like white knights to protect damsels they perceived to be in distress. SWM can take care of herself. I have told SWM recently I respect her good heart. A troll laughed @ me for saying something I truly feel. SWM and I have had pleasant exchanges as well as unpleasant ones. I want SWM to comment here. But, @ 4:45p SWM took a “gratuitous, presumptuous, and beyond the pale” swipe @ this blog and the people who comment here. I gave it back. As far as I was concerned, and I am willing to bet as far as she is concerned, it was over. If someone takes a swipe @ the people commenting here, or this blog, I’m going to give it back. Many of your friends are gone. You don’t like that. I think it’s for the better. Out of respect for you and this blog, I will leave it @ that.
I spent time in Washington DC during an earlier tour of duty on behalf of my Planet Remulak during the late 1930s. The President was named FDR and he wanted to “pack” the Supreme Court with additional Justices beyond the original nine. They called it the Court Packing Plan at the time. FDR was accused of all sorts of things and in later years the Republicans called him a closet commie. When this case of Burwell ever gets to the Supreme Court it would be good if some Democrat in Congress would introduce a Bill to eliminate free medical care for Federal Judges altogether. Then they might think about the rest of America. Roberts and those Koch Brother folks do not need free government paid for medical coverage so that they can go to their private doctors for free.
Beldar – you cannot lower the salary or perqs of judges. They are thinking about denying certain perqs to ex-presidents who make more then $400k./year
At last, the day of reckoning is approaching.!
May God stand with all of you, against this pompous Dictator.
FWIW “an affirmative vote of the entire House of Representatives” sounds as if the entire House voted in the affirmative. The phrase “affirmative vote of the House of Representatives” better reflects for me the nature of the 225-201 vote. Yes, the entire House voted, but they did not all vote affirmatively.
December 8, 1941, is a day which will live in infamy! That is the last time Congress issued a Declaration of War. We do not need a Declaration to go after pirates and terrorists. But if ISIS is a foreign state then we need a Declaration of War. Same with Iran, Afghanistan, Syria, et al.
On the Standing To Sue issue. What if you and your wife each owned a half interest in your farm. You decide to sue the neighbor but your wife disagrees. You both are on the title. You both need to join in the law suit. Each one of those Congressmen and women have two legs, two feet and they all wear shoes. When they all stand together then their lawsuit can be entertained. The government brief in the case is quite good.
I would like to see Congress declare war on ISIS or decide not to. But they do not need to merely incite this President to go to war without a Declaration and if they believe we need a War then by Dog put it to a vote.
Whether used as a political hammer or as a purely constitutional device, the average voter wouldn’t be able to tell the difference. Given that, it would be disastrous to pursue impeachment because voters would respond like the self-centered addicts that they are. Unfortunately it’s the sort of intervention this country needs but no where near ready to accept.
@bettykath
Well then, why don’t YOU tell us your opinion of what a non-partisan judge would say in the above case???
(How was that for a nasty response???)
Squeeky Fromm
Girl Reporter
Between Nick and Squeeky this is a very nasty place. I saw that Mike had posted and I wanted see what he had to say. Too bad I had to go thru the muck to find his thoughts on this.
bettykath –
How did you see that Mike had posted without seeing what he had posted?
Mike, You’d think that members of the House would know how to deal with behavior that they collectively consider to be unconstitutional. Unfortunately, most of the members, particularly the Republicans, don’t seem to have a clue. Seems that Constitutional lawyers don’t either. š
Darren:
Impeachment is indeed a remedy of last resort, but it is the remedy prescribed for what Congress is complaining about. The difficulty is that the word “impeachment” is increasingly used as a threat over purely political disputes, which risks its becoming regarded as a partisan hammer rather than a procedure to protect constitutional process.