This afternoon, Judge Rosemary Collyer issued a final ruling in United States House of Representatives v. Burwell, the challenge to unilateral actions taken by the Administration under the Affordable Care Act (ACA). Judge Collyer ruled in favor of the House of Representatives and found that the Administration violated the Constitution in committing billions of dollars from the United States Treasury without the approval of Congress. The historic ruling reaffirms the foundational “power of the purse” that was given to the legislative branch by the Framers.

In 2015, Judge Collyer rejected an effort by the Administration to bar consideration of the merits of the challenge, thereby setting the stage for her to rule on whether the Administration has violated Article I, section 9, clause 7 of the Constitution, which provides that “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.”

Today Judge Collyer ruled squarely for the House in finding the Administration’s actions to be unconstitutional and that its claims “cannot surmount the plain text [of the law].” Judge Collyer found that the refusal of Congress to appropriate the funds did not give the Administration license to unilaterally order the payment of billions to insurance companies. In comparing this case to prior unsuccessful challenges to the ACA, the Court noted:

“The problem the Secretaries have tried to solve here is . . . a failure to appropriate, not a failure in drafting. Congress’s subsequent inaction, not the text of the ACA, is what prompts the Secretaries to force the elephant into the mousehole. There are no inherent flaws in the ACA that keep Section 1402 payments from being paid, in advance or otherwise. . . . There is nothing in the ACA that prevents compliance. The funds simply must be appropriated.”

Judge Collyer’s decision is linked below.

Judge Collyer’s opinion is a resounding victory not just for Congress but for our constitutional system as a whole. We remain a system based on the principle of the separation of powers and the guarantee that no branch or person can govern alone. It is the very touchstone of the American constitutional system and today that principle was reaffirmed in this historic decision.

This victory was made possible by the extraordinary legal team from the Office of the General Counsel. I would again like to thank former General Counsel Kerry Kircher; Acting General Counsel William Pittard; Senior Assistant General Counsel Todd Tatelman; Assistant Counsels Eleni Roumel, Isaac Rosenberg, and Kimberly Hamm. It is an honor to be part of this team and this extraordinary moment in constitutional law.

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

Burwell opinion


  1. I join in commending Professor Turley. But here is a question that remains unresolved: now what? Congress is paralyzed–in the meantime, thousands of people may potentially be kicked off without insurance.

    1. Mike – thousands of people are going to be kicked off ACA and both their rates and deductibles are going up. It is the October surprise.

  2. Karen, I am particularly happy for you. I know the practical help is far off, but it must feel good.

  3. The only argument I have ever heard in favor of Obamacare is “we must do something for the poor.”

    No one ever addresses all the problems with it. Heck, cancer patients can’t get treatment now thanks to the ACA, and all we still hear is along the lines of you must hate the poor if you do not support Obamacare.

    Come on. Follow the links. Understand the financial and coverage consequences, and THEN convince me why we should keep Obamacare.

    If the problem was health care for the poor, then why didn’t we focus our efforts on improving Medical, Medicaid, and other programs for the poor? Why did we mess around with everyone else’s health care, lowering the standard for everyone so we’re now all on County style health care with Cadillac premiums? Now everyone is equally miserable, and actual health care didn’t improve for the poor at all.

    On the one hand, rich women do not need to pay a $12 copay for birth control, but cancer patients can’t get treatment and may die before their time.

    But the ultra Left falls for it. Why?

  4. It is utterly ridiculous to argue that we should accept large pieces of legislation as inherently flawed. It’s unreasonable to believe we have the time to do it over but we don’t have the time to do it right. The only reason legislation like the ACA is inedible at the end of the sausage-making process is because the main ingredient in this is legacy.

    This is why the federal government is the worst place to experiment on the lives of our citizens. Find a state that is willing to try this out, work out the kinks and then other states will follow suit at the will of their people.

  5. Robert:

    “First off, under the ACA millions of previously uninsured citizens and legal residents, could not afford and therefore often did not receive, necessary health care.”

    I hear this a lot. We MUST DO SOMETHING. But good intentions are not enough. We already had Medical and Medicaid. ERs already are required to treat everyone who comes in their doors. Even the homeless in shelters here in CA can get rides to the ER for necessary treatment. There is also free drug rehab, although there is a long waiting list. It’s also been shown that most people who enrolled in the ACA had insurance previously, that was canceled as a direct result of the ACA. Also, people who previously were on Medicaid or Medical were for some reason counted as new enrollees, when they were previously insured. Oh, and don’t forget that illegal aliens also get healthcare here in CA.

    You do not burn your neighbor’s house down, because it had termites and you just “had to do something.”

    That’s not helpful.

    Please explain to me how making health insurance unaffordable for the middle class, and having most doctors and cancer centers not accepting Obamacare, is helpful to the poor, middle class, or the rich?

    Also, when someone stole my identity, it interfered with my premium payment. Which cancelled my insurance. Not only would they not reinstate me, but because of Obamacare, I would not be able to get another individual policy until Open Enrollment at the end of the year. It didn’t matter that I sent them documentation from the bank that they froze the account due to my being the victim of a crime.

    The poor who get subsidized Obamacare policies still have to pay out of pocket to see a doctor because most do not accept it. Or they get sub standard County-style high throughput 5 minute appointments.

    So please explain to me how that’s humane, helpful, or beneficial to anyone?

    Also, please note how many people have dropped off of Obamacare (which Obama conveniently does’t mention):

    Please defend your position with facts rather than emotion, or holier-than-thou arguments. Read the above, and explain to me why this is OK.

  6. The shame in this, and similar,undertaking is that members of Congress are so preoccupied with vacating the ACA — that they loose sight of what is important. First off, under the ACA millions of previously uninsured citizens and legal residents, could not afford and therefore often did not receive, necessary health care. (Oh, but wait, perhaps Congress has no interests in such citizens and legal residents.) So rather than trying to work on issues in an accommodating manner, they elect to waste, (YES WASTE) meaningful taxes revenues through unnecessary litigation and similar antics. Talk about a waste! The saying that those who live in glass houses should not throw rocks is more than aptly applied to Congress. Please stop wasting resources on meaningless endeavors.

  7. I know this is a bit of an avalanche of links.

    But no matter who wins the White House, I hope the American People educates themselves on how badly the ACA harmed people, even the poor it was purported to help.

    Armed with information, voters can demand Congress repeal the ACA. Democrat or Republican, the ACA is an equal opportunity catastrophe.

  8. This finding forces the US to provide Universal Single Payer Health Care or the rich as well as the poor will begin to feel the effects of Ebola, Zika, std’s, pathological levels of rapidly spreading bacteria and viruses, all the things that the poor will fast and furiously transmit to the wealthy.

  9. We do not need any medical care. Your “medical insurance”? It is merely private social medical care. You have a smaller group of payees than say all the people in France. Do away with medical insurance companies and hospitals. Quit smoking. Eat right or don’t eat at all. We don’t need no education. We don’t need no thought control. All in all its just another blip in the road.

  10. Paraphrasing a former member of Congress on how legislatures really work:

    Regardless of the party in power, even with the best of intentions (which may not be the case here) any time a gargantuan piece of legislation is passed in Congress – it’s impossible for that legislation to be perfect.

    So even in the best case scenario, even with one party rule, it takes several years to perfect huge legislation like Social Security, Medicare, Veterans Benefits, etc. It’s never perfect on the first go round.

    The first piece of legislation has lots of loopholes and dysfunction. In response, voters complain to their members of Congress about the problems of the legislation. This process repeats itself for years and even decades until the original 1000 problems get reduced to 10 problems.

    That imperfect legislation would happen even in the best case scenario. Today we have one of the worst environments in Congress making it near impossible to pass functional laws.

    Members of one political party have even claimed to disrupt ANY legislation, regardless of what it is, if the other party supports it – not even reading the proposed bills.

    The concept of insuring everyone and making insurance affordable, which was also supported by Richard Nixon, is not the problem here!

  11. The ACA took away consumer choice (you can no longer decide for yourself, like an adult, what coverage you need and can afford), took away doctor choice (you may have only a single doctor in your area that accepts ACA, and most insurers now lack any doctors at all in some specialties), and took away off formulary drug benefits.

    This vote did great and lasting harm to people, even putting cancer remission out of reach. This is not figurative harm. It’s physical AND financial harm.

    If you voted for politicians who put this through, you have to take responsibility for what you have done, and fix this.

  12. Cuba gets “free” healthcare because the government takes literally every dime they earn, and everyone gets a $20 monthly stipend to live on.

    That’s why you have 4 generations living in little falling down houses.

    I think that anyone who supports the ACA cannot possible have experienced it first hand. Not the individual Obamacare policies.

    The ACA effectively made all health plans exactly the same, gave us Cadillac style premiums and Catastrophic style deductibles, restricted doctor networks, restricted drug formularies. Sure, you can have 26 forms of birth control with no copay, regardless of how rich you are, but most top cancer treatment centers do not accept individual Obamacare policies.

    So you may die of cancer that would have been treated before the ACA, but by golly, you won’t pay a $12 copay for your birth control pills. And, yeah, you have to pay out of pocket to see a doctor on top of those atrocious premiums, because most doctors will not accept the 30-50% pay cut caused by the ACA, and if you do see a doctor they may see you for 5 minutes tops because only a factory model can produce enough income to keep the doors open, but we’ve “helped people!”

    Seriously. Have an open mind and look into how the ACA affects people.

    If it was wonderful and affordable, I would have been signing its praises.

  13. I wrote this note to a conservative list serve which I receive:

    While most of your readers opposed the ACA, reasonable differences exist about how to provide the best care to the maximum number of people at a reasonable cost to the patient and the taxpayer. Turley not advocate for particular healthcare plan, but championed rule of law. Let’s hope we can follow his example of opposing improper government overreach, even when outcome may postpone effectuation of substantive policy we wish to advance.


  14. Utilitarian ethics does not trump constitutional law. The People spoke to get the ACA passed and the People spoke regarding the abuse of power in its implementation. So the question is not what’s going to happen to all those people’s healthcare benefits; the question is why did Congress pass such a horrible law in the first place? You’d think they didn’t even bother to read it.

Comments are closed.