FEDERAL COURT HEARS SEPARATION OF POWERS CHALLENGE

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