800px-Capitol_Building_Full_ViewThe House’s entire legal team would like, first and foremost, to express its gratitude and respect for Judge Rosemary Collyer in issuing this historic and profound decision. The opinion is attached below.

The ruling today means that the United States House of Representatives now will be heard on an issue that drives to the very heart of our constitutional system: the control of the legislative branch over the “power of the purse.” We are eager to present the House’s merits arguments to the Court and remain confident that our position will ultimately prevail in establishing the unconstitutional conduct alleged in this lawsuit.

Today’s victory is not for the legal team or even the House of Representatives but the country as a whole. Regardless of any divisions that we may have in politics, we remain united by a common article of faith in our constitutional system. Securing this decision means that the fundamental questions raised by the Administration’s actions will be resolved by the courts and not simply the court of public opinion. The system as a whole will be benefited by clarifying the respective powers of the branches.

The House filed this lawsuit 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 without any appropriation from Congress. 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.”

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 more than $4 billion, and the Congressional Budget Office estimates that amount will reach $175 billion over the next 10 fiscal years.

Rather than address the merits head on, the Administration argued that even if the President broke the law and committed $175 billion to insurers without authority, Congress may not seek judicial enforcement of the Constitution and the courts have no authority to order appropriate relief. The position would have sharply curtailed both the legislative and judicial branches. The Court has now answered that question with a resounding rejection of this extreme position.

Judge Collyer held:

“Neither the President nor his officers can authorize appropriations; the assent of the House of Representatives is required before any public monies are spent. Congress’s power of the purse is the ultimate check on the otherwise unbounded power of the Executive. . . . The genius of our Framers was to limit the Executive’s power “by a valid reservation of congressional control over funds in the Treasury.” . . . Disregard for that reservation works a grievous harm on the House, which is deprived of its rightful and necessary place under our Constitution. The House has standing to redress that injury in federal court.”

Finally, I would like to thank the extraordinary team that played such a key role in bringing about this case and this victory. Specifically, I would like to thank 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. They are unparalleled in their constitutional knowledge and experience in this area.

Jonathan Turley
Lead Counsel, United States House of Representatives v. Burwell

Burwell Decision (Sept. 9, 2015)


  1. Samuel … [epistle warning 🙂 ] I already know that vis a vis Mike Appleton’s posts or comments. That is why I said I’d have to re-read it to see if I’d missed something. My exception to what Mike said was minor, truth be told….most likely in saying things differently rather than in opposition. I am very sure Mike Appleton knows how the legislation & appropriation system is supposed to work.

    What bothers me is that we, as a populace, have grown used to the machinations under CR’s (7 years now?) and now it seems, to me at least, that few of us understand how budgets, authorizing legislation, and funding appropriations work…let alone the “why” of it all. We’ve grown used to the absence of a real budget….so it falls out of our consciousness. CR’s essentially let Congress abdicate their own authority and responsibility…and allow the Executive Branch to run amok. Suicide by ambivalence by Congress, both parties, IMO. If up to me, as King of course (I’d be a benevolent King 😀 right?), I’d allow no CR for a period over 30 days, and allow no repeat by more than 30 days…then either pass a budget or shut down the government. Really shut it down….no nothing for nobody 🙂 I am pretty sure that’d shake up a lot of people…and re-focus their thinking.

    I spent way too much time working on my unit’s portion of the Executive Budget to have it all be for naught. When we had real “budgets” we seldom got all or even most of what we asked for, at times, but at least it was done by a normal process without the murky mist of CR’s. We asked for X and got Y … it was done legitimately by Congress, not edict (illegally) by the Executive Branch. When Congress didn’t give us what we asked for we knew we had to prepare a better argument next time, or re-think our proposals. That made our work to submit am Executive Budget portion worth the trouble…these days I really don’t know how agencies, DOD or otherwise, manage it at all. The CR’s have made most of the government lazy and manipulative. Not sure which is worse. Likely both.

    When I consult today with my old office I have to be very careful with the FOUO portions of budgetary matters (always FOUO in DOD or DA)..e.g., what I suggest, since FOUO (For Offical Use Only) is a form of classification. Unlike Hillary I have no misconceptions about what that means. Back in the day I had a quarterly obligation to shred a document issued by TACOM to all units, vis a vis matériel deficiencies, when they did not apply to equipment we managed….and had to restrict the elements that did apply. FOUO means no dissemination, period….even by accident. The shredding (About 3+ hours over a big shredder) was a necessary pain in the behind, but none-the-less worthwhile. Who wants an enemy to have a nice precise document about the deficiencies of an M1A1 Abrams tank? My organization had no tanks, so shredding was required. I still doubt other units we so diligent and don’t doubt the enemy had the info anyway….just not from through or by me.

    When the “classification” is higher than FOUO today I cannot see it since I now lack a CAC card and a clearance by “Role” and I do not need to do so. I can advise in the abstract when necessary without ever seeing the classified material. I do not need or want any “gray suits” at my front door. If I accidentally see “classified” text (v-e-r-y rare) I redact entirely immediately and advise who ever sent it to me to be more careful in the future. See, Hillary is a liar when she says she didn’t handle classified material, even if “marked” or not …any response or forwarding wipes out the classification markings. Passing it thorough a private server assures it. No one who works with similar materials is fooled a bit.

  2. Ari,

    You will find little to disagree with when Mike put up a post. They are fact driven and appeals to logic rather than emotional flag burning.

    One thing that should be noted, when the ACA was passed, insurance companies were buying each others portfolios out. Some small one were paying billions for the companies. This Act was the best thing that ever happened for insurance companies. Just like mandatory auto insurance, now health insurance is mandatory. Who is getting rich off of thid scheme, of course the insurance industry.


    You are also correct.

  3. randyjet … okay, I’ve re-red Mike Appleton’s response and find little to disagree with…except the part about “entitlement” to payment to insurance companies stipulated in the ACA….and then only partially. Said “entitlement” only authorizes a federal expenditure “commitment” not actual payment. He clearly cites malfeasance of both the Executive Branch and the Congress. The “entitlement” part of the ACA, an authorization legislation, does NOT fund payments, it simply authorizes them. By acting ahead of Congress or not forcing Congress to act with appropriation the Executive Branch has violated the Anti-Deficiency Act by creating unfunded obligations and making payments on them. They got away with it so far because of the rules guiding Continuing Resolutions which allowed Health & Human Services to shuffle money from other commitments or obligations to ACA payments, which never had much historic appropriation, if any. One can create a “commitment” based upon authorizing law, but one CANNOT create an “obligation” without citing an appropriation legislation and the funds contained therein. It’s similar to a checking account (in that each appropriation has a running balance) …you can incur a debt and commit to payment of it…but you must have the money in the bank to actually make payment….in federal terms an “obligation” dedicates funds to a particular payment, and allows it to used for that and nothing else. Without appropriation no one in government has the unilateral authority to expend funds from a zero balance. I have/had extensive experience with this facet of government finance as an “authorizing official” and the fiduciary responsibilities therein…e.g., if you screw up the problem of payment follows you home, even if resigned or retired.

    THIS is the problem with operating on CR’s for so many years…like I said, under a CR in my prior role as a “Fed” I could take historic “Construction General” appropriation Fund levels, shuffle some money, and build you a nice house…it’s “construction” right? With the weak oversight now in play vis a vis CR’s if questioned on why I built randyjet a house I could probably claim you were performing work for DOD, however little it might be, and needed the facility. I might even be able to use “Operations & Maintenance” historic funding levels to justify maintaining your house, paying for utilities, etc.

    Of course my example of your house above is intentionally absurd, but not impossible. We had one guy who used “Transportation” funds for purchasing himself a nice new Mustang. It took a while before someone figured him out. He’d buried it within his “Government Purchase Card” (Visa) account (he had a warrant for $1 million…which meant that the car dealer was not on the hook), which shows less detail than obligating and cutting a government check per se. He was fired and forced to re-pay the funds.

    1. Ari, Thanks for the info, and I see where the problems come in and the reason for the murky situation. I got screwed on a CR when the GOP last had control of the Congress and could only pass two funding bills out of 14 that had to be passed. The bill for the FAA reauthorization never came to a vote, and a CR was done which kicked out our raising the age limit amendment for 121 pilots. I could not believe the GOP was so incompetent that they let that bill die along with the others.

  4. randyjet … it’s really very simple. Congress may refuse to fund any activity if the revenue is not in hand. The problem is that Congress has done so on IOU’s to the US citizens (China has barely 11% of our debt) and thus created the problem to begin with…now we’re stuck with it. I will re-read Mike’s post and comment later, if necessary.

    One thing is simple: Legislation that stipulates funding does NOT, repeat N-O-T, provide funding, including the ACA. A law cannot “require” funding….e.g., passage of authorizing legislation does not mandate funding, it simply authorizes funding when and if it is made available….by Congress.

    Saying it another way, in your words about “not paying its bills”…no bills should be generated without PRIOR authorization AND appropriation (separate actions)…please see the Anti-Deficiency Act for details.

    The Executive Branch has no authority to fund anything not appropriated by Congress. The fact we’ve tolerated years of CR’s makes this difficult to discern…give me a CR, in my old “Fed” role, and with very little manipulation, I could probably build you a nice new house with shuffled money.

    Of course I am referring the how laws and appropriations are supposed to act, under the law, like the Anti-Deficiency Act, and the Constitution…lately we seem to not let that bother us very much….so misappropriation now seems normal. Good luck to us.

    1. I personally believe what you wrote was what was intended. Back in the days, there was very little money only for the most important things, defense of the nation, etc. Over time it has been a runaway train (or ship) with our money aboard. The POTUS does not live by those principles and he has captured the keys to the printing press. If only the SCOTUS would, just this once, take those keys away. With the right people at the top we could possibly reclaim some of that China debt over time. It’s not going to be easy.

  5. It almost seems as if we have a situation in which each one of the three branches of government are vying for power over the other branches. Some commenter’s say that the Judicial has overstepped, some say that the Executive has overstepped, some say the Legislative wants to overstep the others. What gives? Why does it seem that the branches aren’t working together?

  6. Ari, It seems like you are saying that Congress can simply disregard laws that require funding of agencies, or programs, or simply refuse to pay its bills. If that is the case, then we have total power given to the House since it can disregard laws, or agencies it dislikes. I suggest you respond to Mike Appleton’s post on this subject to clairfy your point and his.

  7. victorperri … I don’t get your point. Especially the last comment about a lawsuit. The lawsuit is NOT about failure to appropriate, but the executive branch appropriating on its own without Congress at all. Are you saying the executive branch should have this ad hoc appropriation authority independent of whether Congress appropriates or not?

  8. Thanks, John. I used to be a libertarian until I saw the evidence that the system simply doesn’t work.

    If any of these conservative proposals worked, like tax cuts for the wealthy, I’d be all in favor of them. But history has clearly shown what works and what doesn’t. The economy needs rules and referees.

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