800px-Capitol_Building_Full_ViewThe hearing on the Administration’s motion to dismiss the House challenge was heard yesterday in Washington, D.C. as reported widely in the media. (Wall Street Journal, NBC, Daily Mail, Rollcall, New York Times,AP, The motion is now under advisement and the parties will wait for a decision on whether the House can be heard on the merits of this historic challenge. If the Court rules against the motion, the parties will then be able to present their arguments on the merits of the constitutional challenge. If the Court rules for the motion, the case can proceed to the United States Court of Appeals for the District of Columbia for review. (Thanks to Claire Duggan for the photographs)

05282015_6695The House deeply appreciates Judge Collyer’s attention and consideration to this historic case, a case which has tremendous implications for the future of our country. While the House previously has been a litigant in federal court, this is the first case in our history in which the House has filed as a plaintiff to defend its exclusive constitutional power to appropriate public funds, that is, to make public funds available for expenditure by the organs of the government.

Article I, section 9 of the Constitution, states very clearly and very plainly that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The House filed this lawsuit only after the Administration openly violated the Constitution by paying – and by continuing to pay – billions in public funds to insurance companies under an Affordable Care Act program for which Congress never has appropriated a single dime.

In his FY 2014 budget request to Congress, the President specifically asked Congress to appropriate several billion dollars for payments to insurance companies for that fiscal year. Congress declined to appropriate the requested funds. The Administration then unilaterally opted to take money from the Treasury and to make payments to insurance companies in the absence of any appropriation from Congress. To date, the Administration has paid out approximately $4 billion, and the Congressional Budget Office estimates that amount will reach $175 billion over the next 10 fiscal years.

Yesterday, the Administration argued that the United States House of Representatives is not even entitled to have its claims heard by the Court. That is an extreme and dangerous position.

The “Power of the Purse” is the very thumping heart of the legislative function in our system of separation of powers. 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. If the Executive can spend public funds in the absence of an appropriation from Congress (as defendants are doing here), and if the houses of Congress then are barred from even getting into federal court to challenge such actions (as defendants argue here), Congress’s ability to use the “Power of the Purse” to check the Executive largely disappears.

Put another way, if the Executive can pass out public funds at will, and if Congress cannot then challenge such actions in federal court, Congress itself becomes little more than a decorative element in our constitutional system, and Executive power will be almost entirely unchecked. This would be an extremely dangerous turn of events 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.

The House’s position is simple: it is constitutionally entitled to have its claims reviewed by the Court, and it is appropriate for the federal judiciary to resolve the House’s claims on their merits. We are confident that Judge Collyer will give serious consideration to the the views of both sides and we will await her decision on the motion.

Once again, I wish to thank our extraordinary team of lawyers from the General Counsel’s Office of the United States House of Representatives for their work yesterday and throughout this case: 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.

Jonathan Turley
Lead Counsel



  1. forgotwhoiam … no need for attribution. Once upon a time it was as common as “howdy.”

  2. hskaprob,

    “Good job Jonathan. A much needed case for the democratic process. It is interesting how some people side with the Constitution when in agreement with its intent and oppose it when it does not.”

    “the people are nothing but a great beast…
    I have learned to hold popular opinion of no value.”

    -Alexander Hamilton

    “Give all the power to the many, they will oppress the few. Give all the power to the few, they will oppress the many.”

    ― Alexander Hamilton

    Ben Franklin, “…a republic if you can keep it.”

    The republic in 1789 allowed only a severely restricted-vote and was distinctly not a one-man one-vote democracy. The American Founders would be proud of China which has adopted their model of a restricted-vote republic with severely limited government, freedom and free enterprise. Alexander Hamilton appears not to have been stuck on “popular opinion.” What’s the contemporary American condition?

    Conducting a denial of secession, which West Virginia, Pakistan, Bangladesh, the USSR and Scotland all availed themselves of, the unconstitutional “executive overreach” suspension of Habeas Corpus, confiscation of private property, unconstitutional Civil War and “amendments” ratified without a quorum, through coercion and under the duress of war and “Reconstruction, Lincoln began the process of nullification in “opposition” to the Preamble, Constitution and Bill of Rights, which continued through corrupt ratification of the 16th amendment, etc., etc. to the compulsory commercial purchase (as Congress declared it “not a tax”) of the ACA today.

    The Warren Report is the best analogy to America.

    You’re on the right track and have “miles to go before you sleep.”

  3. Aridog,

    Ok. I tried the “raspberry” effect on the Ppbbfftt. It works well.

    I’ll use it with attribution.

    Thank you.

  4. forgotwhoiam …vis a vis my name and your neighbor’s…we are rather common. Last I checked there were about 8000 of us in the USA. I’ve met a couple of them. It does help with anonymity in plain sight 🙂

    PS: I mentioned the use of a modification of of my nick because it is done intentionally to aggravate by a couple of the commenters here. I was not certain about your use of it. I might have done so in the past myself until I noticed the way it apparently tainted my comment. Now, at worst I shorten the full nick to something that is still clear and uses most of the original nick, for the longer ones. It’s no big deal. As for the term : Ppbbfffttt Among old folks like me that is how to “say” what we used to call a “raspberry” usually used to express frustration.

  5. Good job Jonathan. A much needed case for the democratic process. It is interesting how some people side with the Constitution when in agreement with its intent and oppose it when it does not.

    Now all we have to do is have the courts define “the public good” and provide the criteria necessary that all public policy must meet for it to be deemed, in the best interest of the majority.

    As an example. Prohibition was deemed by Congress and the Courts to be in the best interest of the majority. We now know that was an erroneous assumption. That like much of our current public policy, it did more harm than good. The enforcement of any public policy requires the redistribution of wealth from those it rightfully belongs to, too those it does not rightfully belong to and usually it is deemed or declared by the ruling class, that such policy is for the public good. Obviously we know that special interests have long influenced the ruling class and that much of the so-called public policy benefits those special interest at the expense of everyone else. To a point today, where the costs have placed our society into massive levels of debt both individually and socially. An endodontist I spoke to the other day, accumulated $460,000 in student loans. That is an unconscionable amount of money required for the privilege and practice of doing root canals. Now wonder people are traveling to foreign countries to have their dentistry done. Our dentists must charge unaffordable prices to the majority. Of course the Federal Government through such actions as this case notes, has amassed $800 to $1 trillion in annual debt over the last 10 years now. To believe that this is sustainable is rather naïve. We all know this is happening but it seems as if we are just ignoring it.

  6. Aridog, Please accept my apologies for indulging myself with names and phonetics. It’s a quirk of mine and I ,sadly, have no discernable appreciation for how it affects others. I like to refer to Paul Schulte as PCS. It’s ok because HE KNOWS NOTHINK!!!

    I accept your definition of Ppbbfft.

    What a coincidence. My neighbor was Dr. Richard Thompson who studied cognition through his research grant at Keck Institute, USC. That’s for your consumption. I don’t fly at that level. I was simply a neighbor but he was a very nice guy. He passed away about 8 months ago. That’s life. Please tell me you’re not a ghost.

  7. As a supporter of the ACA, I rather hope the administration wins. However, any claim that there is no harm merely because additional legislation is an option seems unsustainable because the purpose of legislation is NOT to clarify the plain language of the Constitution upon which all bills must be based. Ignoring the Constitution is not part of the amendment process.

    I really hate it when I argue with myself and lose!

  8. If Senator Byrd was alive today; Obama would not have gotten away with this. He would be a fierce defender of the ability of Congress to appropriate funds. If this was a Republican President; the Democrats would have done the same thing.

    God save our country!

  9. BTW..my nominal name is “Aridog” not Mr Dog. Real name is Richard Thompson. I know it is hard to remain insulted, and you do a pretty good job if it. Not my problem, is it?

  10. forgotwhoiam … you may take my comment as an insult, however, it was a compliment. The verbal noise re: Ppbbfft or whatever was innocuous. It represents my frustration. I am going to credit comments that I think are credible. Like I noted your’s were. How hard is that to understand?

  11. Mr. Dog,


    The “Mexican” contribution refers to Ann Coulter’s position:

    “During a May 26 interview with Fusion’s Jorge Ramos, Coulter alleged that the United States has “taken in one quarter of the entire Mexican population.”

    Mexico is gobbling up the American Southwest like Pac Man. At least, that is the effect.

    Did the Founder intend “immigration” to be defined as the immediate transfer of one quarter of the population of a contiguous country? If the population of a contiguous country isn’t materially changing or “transforming” its geographical position, it must be changing something else. What might that be? Perhaps it is “fundamentally transforming” America, the land that Obama loves, right?

    I think this is something other than “immigration” Perhaps “Pac Manning.”

    It just couldn’t be “invasion,” could it?

  12. Mr. Dog,

    I’ll take that as an insult until you provide the definition of Ppbbfffttt (remember, it was you who considered me “challenged”).

    The salient thrust of that post, as I recall, was that Putin has poisoned yet another of his opponents and that China is literally building new countries where it wants dominion. That’s a new twist. Here, in America, we merely have to cope with executive usurpation and “legislation from the bench.”

    “Better Red Than Dead.” Did I get that right? The “Chamberlain Option.”

    “May we live in interesting times.”

  13. forgotwhoiam said …

    China, Russia, ISIS, North Korea, Mexico, et al. are gobbling up the world like Pac Man.

    Great analogy. If you think even a little about it, it is so true. Yeah, I am so old I recall Pac-Man favorably. Ppbbfffttt!

  14. Rick … you still do not understand my point. It was about “bureaucracy, not any one part per se. The Congressman did not act because of the agency involved, but the principle of application of the law. My experience is with the military, so I cited its bureaucracy. Said more simply, our body politic does not have to be divided on political lines. The Congressman I was referring to is John Conyers Jr., who on most days would consider my ideas and complaints tied to my location and politics. We are very different individually. If you lived here you might grasp it better. I have great respect for him and his office, and voted for him every time while he was my Congressman….because he acted as My Congressman. That is very important to me. He was gerrymandered away from my district in the last census. My point, once again, is that people of different persuasions can work together. If you insist I did not say that in my comment, perhaps I worded it poorly. None the less that is my point. Choosing to ignore it when I try to clarify it is on you. And it is your right to do so. No challenge to Rep Conyers’ or my inclinations was any part of it, our common interest was. Many here would doubt we had this relationship, but I can prove it and now, years later it is better known among my peers, all of whom benefited. I can’t do any better. Given the frequent assertion made here now and then about differences, many negative, it was my way of saying it doesn’t reflect me. Have a nice remainder of the day.

  15. As America focuses on the coronation of King Obama by its judicial branch, Russian and Chinese aggression intensifies and spreads.

    Russia is taking new land and China is making new land.

    After the Russian invasion of Ukraine and threats to the Balkans and Scandinavia, Putin continues the elimination of his opposition.

    Vladimir Kara-Murza Jr., a former political ally of slain Russian opposition leader Boris Nemtsov, lost consciousness in Moscow on May 26 and was hospitalized with what his wife calls “symptoms of poisoning.”

    China builds a “Great Wall of Sand,” conducting operations to annex the South China Sea.

    “After Chinese state media warned that war with the United States may be “inevitable,” Beijing has published a policy paper detailing how the military will shift its focus from land and coastlines to the open seas. China’s State Council released a white paper today that criticizes “external countries…busy meddling in South China Sea affairs” and sets out an “active defense” military strategy for the country.”

    China, Russia, ISIS, North Korea, Mexico, et al. are gobbling up the world like Pac Man.

    America is busy emasculating itself and tidying up the last efforts to finalize the complete nullification of the Preamble, Constitution and Bill of Rights.

    Does it look anything like 1789 around here to you?

    The inmates have taken over the asylum.

  16. It seems to me that the Executive branch(not just President Obama, but those who came before him have exceeded their constitutional authority). There use to be a term “an act of congress”. It seemed to take forever to get something through the Legislative branch. Our government was designed to be safe not fast. Impeaching the President is not the answer. Even if it were successful you’re only talking about this President. Something has to be done to curtail or impede the power of the executive branch. Something also has to be done to curtail or impede the ability of bureaus and bureaucrats in their ability to write all these rules and regulations. These people were appointed, not elected.

  17. Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia

    will either find for the Congress and Professor Turley

    or it will nullify and rewrite the Constitution.

  18. Betty Kath,

    Missing that “free stuff” are you?

    How’s that welfare and affirmative action working for you?

    Self-reliance! You don’t need no stinking self-reliance, huh?

    P.S. The new boss ain’t the same as the old boss. It’s called “elections.”

Comments are closed.