220px-Meade_and_Prettyman_CourthouseAt 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.

Seal_of_the_President_of_the_United_States.svgCongressional SealThe 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


  1. “You are ignorant of this process” is NOT A PERSONAL INSULT. It is a statement of fact based upon your comment showing your cluelessness about this hearing and case. My dressing down of you for your ignorance on the substance of this post had NOTHING to do w/ “opinion” and everything to do w/ facts. Get up to speed before commenting. And, put on your big girls pants,

  2. OY! Here we go again! Personal insults are the name of the game for some who comment here frequently–and who can’t abide people whose opinions on issues differ from theirs.

  3. Despite the histrionics from certain quarters, it has nothing to do with liking or disliking JT as a man, a blogger or as a Constitutional scholar, it had to do with the merits of the case. Let’s try to not make it be personal.

  4. I hope I don’t get lectured again about being too tough.

  5. Elaine, All this hearing was about was standing!! You are ignorant of this process and case!! The judge read briefs submitted previously, and was hearing oral arguments today in support of the briefs. She will now decide if the House has standing. If she rules they do, the case proceeds. If she rules they don’t, the case is dismissed. Your lack of knowing the fundamentals of what transpired today is shocking.

  6. The late Christopher Hitchens wrote and spoke eloquently @ how liberal friends he had for decades savaged him when he supported the War in Iraq. They would not speak w/ him. The “friendship” was over. Man, what a toe the line, don’t stray off the reservation, cult like mindset.

  7. I.Annie,

    Mike Appleton wrote: “I am pretty much convinced that standing is an insurmountable problem in this case, regardless of what the district court judge may rule.”

    I’m not a lawyer–but I would think it does hinge on standing.

  8. JT in response to the WH assertion, “I find it astonishing that this injury can be viewed as an abstraction.” Even the slanted reporters give JT the victory over the WH attorney. Can’t you cultists at least fell good for JT having a good day in court for chrissake??? You know he’s worked his ass off on this!

  9. http://thehill.com/policy/healthcare/243311-house-gop-challenges-obama-in-court

    “She pressed McElvain on “why you think this just an abstract issue of law.”

    McElvain repeatedly tried to stick to the issue of standing, noting that this preliminary stage is not about the substance of the case. But the judge pressed McElvain on the substance, saying it was relevant to the standing question to see whether the dispute was abstract or whether there was a concrete issue harming the House.

    Collyer said if the dispute really is abstract and generalized, “you’re probably right” that the House has no standing.

    “I just can’t decide whether that’s actually a fair statement,” she said.”

    Interesting reporting from The Hill. So if the Judge thinks it’s a fair statement to say the dispute is abstract and generalized, she would rule that the case has no standing. Does it hinge on that?

  10. Well Elaine, the only difference I see in our stances is I would like to see those actions you mentioned in addition to this lawsuit filed by JT. See, we can agree.

  11. Not spinning anything. I’d prefer to see Congress going after the Obama administration for its war on whistleblowers like Jeffrey Sterling and Thomas Drake and the DOJ letting Wall Street banksters off easy by allowing them to pay fines for their criminal activities instead of trying to send them to prison.

  12. Squuek, Here’s the deal. It was well known the judge was a Bush appointee. This is just spin because she was tough on the WH attorney. It sounds like he was not prepared. She also admonished him for shaking his head no. Judges HATE that.

  13. Olly, You remember Vern Gagne because I believe he was a Gopher. I think he played in the NFL before going to wrestling. My grandma liked Verne.

  14. @NickS

    Yeah, if JT wins it will be because the judge is partisan. And if he loses, it will be because the judge rose above her partisanship. They don’t have any real firm principles, and to them, everything is personal, partisan, and political, sooo they project their own failures onto everybody else.

    Squeeky Fromm
    Girl Reporter

  15. The Obama legacy is going down the toilet and the former big shots are returning here trying to spin it right. Sad, really.

  16. “HISTORIC”? Hmmm…how is something historic before it has happened? It might be some day, but for now that is a bit presumptuous. And, dare I point out, self-aggrandizing?

Comments are closed.