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. davidm2575

    The Founders acknowledged the need for “checks and balances.”

    “Checks and balances” are law enforcement.

    Law enforcement has local, dedicated agencies that are constantly active.

    Crime and corruption is constant in the general population and among officials.

    “Checks and balances” need to be transformed into constant law enforcement tools.

    “Tipping points” are created by officials and require “checks and balances” constantly.

    The impeachment process should be streamlined, enhanced and regularly deployed.

  2. This is absurd and unnecessary.

    If Congress feels compelled to sue the President in court, then Congress feels that the President has broken the law. If Congress feels that the President has broken the law, then it is Congress’s prerogative to impeach him: the House would call for the impeachment, and then the Senate would try the impeachment. If Congress feels that the President has broken the law, then instead of using him, they should use their constitutional power to impeach him and remove him from offfice. If they do not see fit to sue him, then they should stop wasting taxpayer money with their meaningless gesture of scoring political points by taking this to the courts. When it comes to federal elected officials breaking the law and removing them from office, Congress *is* the court!

    1. Joel wrote: “If Congress feels that the President has broken the law, then it is Congress’s prerogative to impeach him: the House would call for the impeachment, and then the Senate would try the impeachment.”

      Impeachment leads to a serious penalty if convicted. Those convicted are barred from any office of honor, trust, or profit under the United States. Perhaps Congress “feels” the President has acted beyond his powers, but it does not “feel” that it warrants impeachment and the possible penalties that would come with conviction.

      “If an official is impeached by the House and convicted by the requisite vote in the Senate, then Article I, Section 3, Clause 7, provides that the person convicted is further barred from any “Office of honor, Trust or Profit under the United States.” The convicted official also loses any possible federal pensions. With a few exceptions, those impeached and removed have generally faded into obscurity.”


  3. The Congress is its own court, superior to any and all.

    “…the supreme power rests in the body of citizens entitled to vote…” *

    Congress has the power.

    Impeachment is the tool related to “officials,” one and all.

    Impeachment must be enhanced, accelerated and employed. Impeachment must become a forceful,

    looming threat and an effective deterrence.

    From Lincoln’s suspension of Habeas Corpus to Obama’s usurpation, and everything in between, “officials”

    have perpetrated “High crimes and Misdemeanors” with impunity.

    That has to change. The Preamble, Constitution and Bill of Rights were intended to be taken literally and

    implemented with strict enforcement, understanding that practice in 1789 is the model.

    *Republic – a state in which the supreme power rests in the body of citizens entitled to vote and is exercised by representatives chosen directly or indirectly by them.

  4. Mike, thanks for making it worth the scroll.

    An excellent example of projection:

    “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.”

  5. The judge questioned JT on the other the methods of redress, those being additional legislation which MikeA points out, or impeachment. I read about 10 articles reporting on this hearing. The judge, lightheartedly jibed the press about writing down the impeachment part. She knew some would jump on it. The liberal biased reporting made it seem sinister, and of course included who appointed the judge. It would be legal malpractice if the judge did not question JT why his clients are not seeking the more historical remedies, which is what she did.

  6. I earlier attempted, obviously without success, to generate a serious discussion on the issue of standing. The views expressed by the court at the hearing today regarding the constitutionality of the actions of the executive branch are of no consequence if the plaintiff lacks standing to sue. (I have also learned after many years of oral arguments that predicting outcomes based upon a judge’s inquiries is a foolish enterprise.)

    The gist of the suit is a claim that the Department of Health and Human Services and the Department of the Treasury have engaged in legislative actions, thereby usurping the authority granted exclusively to Congress. Among other things, the House is seeking injunctive relief against the executive branch.

    Many of the comments suggest that standing is some sort of arcane procedural hurdle erected by disgruntled Democrats in order to prevent the court from considering the case on the merits, a version of the old losing on a “technicality” argument. That is false. The jurisdiction of the federal courts is limited to determining “cases and controversies.” Standing, or the right of a plaintiff to seek the aid of the court, is critical to the acquisition of subject matter jurisdiction. In other words, if a plaintiff does not have standing, a court lacks the power to rule. It is therefore a threshold question of substantive law. The favored procedural method for raising the issue of standing is through a motion to dismiss, which is what occurred in this case, and that motion was the subject of today’s hearing.

    Since I did not attend the hearing and have no idea what transpired, I cannot speak to the arguments advanced by either side. However, I have read the pleadings and they are readily available to anyone with an interest in reading them. I do not believe that the House has standing in this case because I do not believe that the House has sustained an “injury” within the meaning of the test laid down in Raines v. Byrd, 521 U.S, 811 (1997) and other cases. The constitutional powers of Congress may have been ignored in one or more respects, but they have not been diminished.

    Furthermore, even should the House prevail on the standing issue, I fail to understand how injunctive relief is warranted because the claimed injury is not irreparable. Congress can pass additional laws directed specifically to the offending actions. Should that prove ineffective, Congress may also invoke its impeachment powers. In other words, Congress has available remedies under the Constitution that it has failed to utilize. As I have previously noted, perceived congressional impotence is wholly self-inflicted.

    I also believe that invoking the court’s involvement in a power struggle between two co-equal branches of government is dangerous as a matter of policy because it risks creating the perception of judicial partisanship. In short, were I a judge, I wouldn’t touch this case with a ten-foot battle axe.

    I fully understand Prof. Turley’s position on these issues and certainly respect his intellect and abilities. I simply disagree with this approach to executive overreaching on both legal and policy grounds,

    These are the principal questions as I see them. They have nothing to do with the identity of the judge or political affiliations or whether one favors or opposes the ACA.

  7. As to this case, Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia, will either
    support or rewrite the Constitution.

    America will have an executive branch and a judicial branch in “overreach” if the Constitution and Prof. Turley do not prevail.

    Will an accelerated, mass impeachment process become necessary; sort of like “Traffic Court” for governmental officials?

    Will this be the actual “constitutional tipping point?”

    America may soon “tip.”

    If “Obama is the President, Nixon wanted to be,” America will soon have an official Tyrant.

    These new developments likely will have little effect as most people will still miss the metaphorical “revolution” because they have to go to work tomorrow.

    “May you live in interesting times,” Chinese proverb.

    It might be of interest, if not import, to a few Americans that the Chinese are building a
    Great Wall of Sand in neutral, indisputable international waters. Are they doing this while America is distracted by a “President” that is “fundamentally transforming” the country that he “loves?”

    Things would be different if the requirement for President were a “natural born citizen?”
    Oops! Which part of the judicial branch missed that?

    “High crimes and Misdemeanors” in abundance.

    The inmates have taken over the asylum.

  8. Standing of the House in this case… hmmmm…

    If the majority of the House voted to sue, is not that the same as when they pass legislation? If it takes a majority to pass a law, is not said that “the House of Representatives today passed a law…” because of that majority vote?

    If the House has to vote 100% in this case to sue, why shouldn’t 100% be required to pass legislation? As I understand, it only takes the majority of the Senate or House to represent that branch.

    This legal jive has been made way to complicated. Is that for the benefit of lawyers so they can get paid to ‘sort it out’?? ;-D


  9. @Elaine

    You said, “Blah…blah…blah!”

    Thank you! That is probably the best example of your philosophy you have ever uttered! Short, brief, and to the point! I think you finally have the whole commenting thing down pat! Kudos!

    Squeeky Fromm
    Girl Reporter

  10. In this court, they have standing when the judge says they have standing.

    When the judge in this court says the House does not have standing, it will either effect Impeachment appropriate to the substantial subversion and nullification of the Preamble, Constitution and Bill of Rights, or it will cede all power to the New Sovereign, the New King, King Obama.


    “Why has government been instituted at all? Because the passions of man will not conform to the dictates of reason and justice without constraint.”
    ― Alexander Hamilton


    “On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

    ― Alexander Hamilton, The Federalist Papers

  11. Standing to sue. This should be the topic and not who flung fu. There are brown spots on the wall but I dont care who flung fu. Standing. Only a small majority of the House voted to sue. They cannot stand in the shoes of the entire House of Representatives. The other side could file a suit too and they would not have standing to sue. If they don’t all stand together then they don’t have “standing”. It is quite simple.

    You folks argue more than a rabid dogpack.

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