The 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)
The 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
The bar for impeachment is extraordinarily high. Benjamin Franklin insisted impeachment be part of the Constitution because he believed the only other way to remove an “obnoxious” president, as he put it, was by political assassination. So maybe the way to evaluate whether a president ought to be impeached is to ask if a super majority of the public would support assassinating the president if the impeachment remedy did not exist in the Constitution.
Under the current circumstances the answer is no. Not even close.
Now, if Obama were using the money he is illegally diverting from the treasury without Congressional authorization to benefit himself personally, then maybe a super majority of the public would support his assassination if the impeachment option did not exist. But nobody asserts he is personally benefitting from the money.
http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1163&context=facpub
“Not very nice when so many people are depending on it ”
It wasn’t very nice when that prior Congress dismantled the existing insurance policies when so many people were depending on them.
Gee, imagine that. A later Congress can decide to undo what a previous Congress did. . .Wow, who would have ever thunk???
Squeeky Fromm
Girl Reporter
” 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.”
So Congress passed the ACA, the President signed it making it law but Congress refuses to pay for it? The Repubs haven’t been able to repeal it so they intend to kill it by refusing to fund it? Not very nice when so many people are depending on it for their medical care. Maybe it’s Congress that should be impeached.
Rick … that was NOT my point. There was no criticism of the military, it was solely about violation of standing law and misdirection of funds.Could have been in the EPA or other agency for that matter.
Misdirection of funds….in the military right? So while it could have been in the EPA the circumstance the liberal reacted to was not, and therefore the liberal’s conflict was not tested.
I said it that way to illuminate that we all, from liberal to conservative, have a common interest in equitable solutions.
We do have such a common interest, but your experience as described is not an example of it.
Rick … that was NOT my point. There was no criticism of the military, it was solely about violation of standing law and misdirection of funds. Could have been in the EPA or other agency for that matter. The Congressman’s preferences aside, he acted for a constituent he might not otherwise listen to and stopped the violations and misdirection….regardless of political “preferences.” I said it that way to illuminate that we all, from liberal to conservative, have a common interest in equitable solutions. I grow very weary of the labeling anyway, since I can be liberal one minute, usually social, and conservative, usually fiscal, the next and the viewpoints are not incongruous.
Thanks Nick. I see two ‘injuries’. The first is the Executive’s abuse of power that constitutionally belongs to the Legislative. The second is the appropriation of the People’s funds for purposes not authorized by the People’s representatives. It’s as though the first had the Executive blow open the congressional vault and the second was the Executive taking the People’s money out of the vault. There could be no injury to the People without first injuring the Legislative.
David,
I think back to the DoI:
“Prudence, indeed, will dictate that Governments long established should not be changed for light and
transient causes,”
There has to be a remedy “per infraction” rather than going impeachment for one violation or having to wait for multiple abuses of power before impeachment becomes palatable. I can very easily see this to be the fundamental weakness in the separation of powers; this gap of options. How much damage should one branch be able to inflict before anything can be done to stop it?
In short, there really are liberal Congressmen who do “represent” their constituencies on principle … even those constituents who might otherwise be called rightist. We just need more of them and more executives in government who do the same.
A liberal criticizing the military isn’t an example of action against political preference.
Congress has other remedies such as additional legislation or impeachment.
How can additional legislation be a remedy to the Executive ignoring legislation?
Paul C said…
I see the problem in how they are defining injury.
Bingo. As a former military and a DOD “fed” I can assure you that misdirection of funds “injures” all taxpayers every day. The legislature is our representative. Impeachment seems too narrow when the practice is widespread. Even Congresspersons have acted, via “Earmarks” to block misdirection…it isn’t always a pork rider. Candice Miller, R-MI, is famous for watching every single dime of any appropriation she sponsors, particularly if it impacts her district…when she felt there was misdirection, or outright fund shifting, she went directly to the person doing so…you did NOT want to get a “Congressional Inquiry” from Rep Miller. You had 72 hours to explain yourself and she never let an issue slide. Today, politics of fund dispersion gives me a headache…it never seems to end as a hobby in government. Two of my “whistle-blower” instances were first to force compliance with standing law, and the corollary was the lack of authority to spend funds disobeying the law. Amazing how many senior “honchos” got their knickers in a twist when I took this action, when the violation was as obvious as sunrise in the east. Fortunately in both of those cases I was able to retain anonymity outside of the Congress person, and his staff, who assisted me…one who many might think would ignore me otherwise given his political inclinations. In short, there really are liberal Congressmen who do “represent” their constituencies on principle … even those constituents who might otherwise be called rightist. We just need more of them and more executives in government who do the same.
Thank you JT for taking on this case and for your brief write up above. And thank you Nick for your excellent analysis on reporting.
After reading the pleadings I would say that the WH makes a good case at first blush, but I am not sure it will hold. I see the problem in how they are defining injury. Personally, I do not buy their argument, I see JT’s argument of injury and I can see how the judge had problems following the WH thinking.
The First Amendment provides that citizens have a right to petition their government for redress of grievances. The grievance against the Executive Branch is the unlawful spending of taxpayer funds. The government exists in three branches. These citizens chose to sue in the federal courts, the judicial branch, to petition this government for redress of this grievance. The plaintiffs did not assert the First Amendment right. I would do so. They still have time to amend their Complaint like the BarkinDog suggested and file as taxpayers and not as The House. Some of the Congressmen could do this. And then assert the First Amendment right to petition their government for redress of this grievance.
Meanwhile some voters should petition their government for redress of grievances against the House of Representatives for not passing a law forbidding the Executive Branch from spending this money. Next thing you know America will will be in an undeclared war somewhere.
It takes an outsider from another Planet to see some things sometimes. I stand on these principals. And if I was in grade school I would stand on the Principal if he did not require the teaching of the Constitution.
I would like someone to explain why is this correction being done through a lawsuit rather than through the impeachment process?
Olly, standing, as I understand it, means injury. The WH claims the injury is abstract, and Congress has other remedies such as additional legislation or impeachment. JT states the injuries are quite real, and that additional legislation is not the remedy. Regarding impeachment, one report I read had JT likening it to a nuclear option w/ an on/off switch, just not what the founders intended.
The standing issue concerns itself with injury, no? If the House has OTHER options, such as further legislation or impeachment, as Mike Appleton clearly spelled out on the other thread, how has the House been injured?
I’m not clear on the ‘standing’ point. Isn’t the issue regarding the overreach by the Executive into the constitutional power of the Legislative? Who would have standing more than the Legislative?
One can’t help but chuckle @ the irony of Republicans suing a Dem president for unilaterally doling out billions of dollars to insurance companies. It’s like we have fallen down the rabbit hole.
You can learn a lot about the bias of reporters by reading accounts of the coverage. Since there are no cameras in Federal Court, it is simply reported on via the notes of reporters. They can’t change what is said, but they can give their own spin. This hearing was whether the House has standing, whether there is a real injury. The WH’s attorney called the injury “abstract” and JT countered that. The reporting on that and most of the hearing seemed pretty straight. All reports I have read[10 or so], have the WH’s attorney being grilled hard by the judge. She admonished the attorney for shaking his head “no” as she questioned him. Chrissake, I learned my first year in court, testifying in juvenile matters, you NEVER shake your head no in court. Continuing, in questioning JT about standing, the judge asked him about why his clients did not seek more historically know remedies, that being additional legislation or impeachment. The judge appears to know reporters well and immediately after mentioning impeachment turned to the reporters and jokingly said, “Don’t write that down.” Some reports I’ve read don’t mention it. Some report it as it was, lighthearted. But, a few report it as it was sinister, and the judge was ordering them not to report what she just said in open court. That is ridiculous on its face. If it’s said in court it is public record. There’s a court reporter recording everything.
These biased reports also hit hard that W appointed this judge, trying to make it even more sinister. Regarding W appointing Judge Collyer, most accounts I’ve read point that out. Anyone who has followed this case knew that, but I can see the reason to mentioning it. The biased reports do it in a sorta slimy way, seemingly trying to connect the question and subsequent jibe @ the press about impeachment. The reality is, it was the judges duty to question about impeachment, that is a Constitutional remedy. The biased press seemed to skewer the judge in a subtle way for having the temerity to have a sense of humor, kidding them about not reporting it.
When I taught current events in high school I would have students study print and TV reporting looking for bias. This would have been a good one. Most of the reporting was pretty straight.
Today’s article by JT gets to the heart of the matter, not the artFay.
A good argument is made by JT in this article above. If a transcript becomes available it would be nice to have it available on the blog here. Standing: The case might be made that any taxpayer has standing to sue the Executive Branch for expenditure of funds not approved by Congress. The plaintiffs might move to amend the Complaint to add individual Congressional members suing as citizens and taxpayers in addition to their official capacity as United States Congressmen and women. That would fly better.