There are now eighteen states and the District of Columbia lined up to challenge the executive order by President Donald Trump to rescind the Obama order giving insurance companies billions in subsidies . . . without an appropriation of Congress. As explained below, this challenge advances a rather curious claim that Trump cannot rescind an earlier order found to be flagrantly unconstitutional by a federal court. In most high-profile litigation cases, counsel spends considerable time exploring whether a challenge will allow a bad case to make bad law on appeal. That would seem the most likely outcome here but much of the litigation by Democratic Attorneys General have been driven more by political than legal calculations. Voters now expect every act of Trump to be challenged and no Democratic AG wants to be the only one to sit out a challenge to an unpopular order. The result is a type of perpetual litigation machine where bad precedent is being cranked out because it is viewed as good politics.
Here is the column:
There appears no end to the villainy of President Trump. This week, California Attorney General Xavier Becerra denounced Trump as nothing short of a saboteur while members have lined up before cameras to denounce his latest executive order as tantamount to murder.
His offense? He rescinded an unconstitutional order by President Obama and restored the authority of Congress over the “power of the purse.” The response to what Becerra called “sabotage” has been a call for a rather curious challenge where Democrats want the judicial branch to enjoin the executive branch from recognizing the inherent authority of the legislative branch. It is an institutional act that would have baffled the Framers.
I had the honor of serving as lead counsel, with an exceptionally talented team from Capitol Hill, for the U.S. House of Representatives in its challenge to unilateral actions taken by the Obama administration under the Affordable Care Act. In a historic ruling, U.S. District Judge Rosemary Collyer ruled in favor of the House of Representatives and found that President Obama violated the Constitution in committing billions of dollars from the U.S. Treasury without the approval of Congress.
The money went to insurance companies, even though Congress had rejected an Obama administration request for the appropriations. The case is pending on appeal, but the Trump administration has filed a notice with the D.C. Circuit that it was rescinding the order found unconstitutional by the federal court. The result of the order is to return the matter to the place where it should have remained: in Congress.
The ruling of the federal court was a triumph for those of us who have warned for years about the erosion of the separation of powers within our constitutional system. That high point in the judiciary followed a low point in Congress. In a State of the Union address, President Obama announced that he would circumvent Congress after it failed to approve measures in immigration and health care that he demanded.
This alarming declaration was met with an equally alarming response of rapturous applause by members thrilled by the notion of their own institutional obsolescence. President Obama proceeded to then assume the core defining power left to Congress under the “power of purse” in Article I of the Constitution. When Congress refused to appropriate money for subsidies for insurance companies, President Obama ordered the money from the Treasury through a claim of executive authority.
As affirmed by the federal court, the actions of President Obama directly violated the “power of the purse” clause of the Constitution, which provides that “no money shall be drawn from the Treasury but in consequence of appropriations made by law.” It also violated the federal law itself and the court declared that such actions “cannot surmount the plain text [of the law].”
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If a president could simply ignore the Constitution and a federal law, the separation of powers becomes little more than a constitutional pretense, a power subject to the discretionary whim of presidents. In first requesting the money and then unilaterally ordering its payment, President Obama established that the limits of the Constitution would not be allowed to exceed the patience of a president.
Madison believed that, under the separation of powers “ambition must…counteract ambition.” He was speaking of the institutional ambition of the branches and their respective leaders in jealously protecting their inherent powers. However, the Affordable Care Act subsidies showed that the Framers underestimated how short-term political ambitions could overwhelm institutional interests. It is a problem that I have previously described as “constitutional short sellers” who are willing to discard core powers to achieve immediate political benefits.
Now many of these same members are irate that President Trump would remove an order found to be unconstitutional and leave the question of any subsidy to Congress. Some members have noted that President Trump is only doing this to force their hand on the deadlock over new health care reforms. However, this would only mean that the President might have done the right thing for the wrong reason.
Democrats in Congress spent eight years dismissing concerns from constitutional scholars over the loss of legislative authority in favor of a type of “uber presidency.” They are now outraged that President Trump is using the very unilateral powers that they celebrated when used by President Obama. In reality, the Trump administration has largely used the powers to rescind the Obama administration orders and thus far has not acted unilaterally to the degree of his predecessor. Yet, what if he did? Would these same members celebrate their transcendence of unilateral executive power?
Consider Trump’s controversial border wall. Democrats have steadfastly opposed any funding for the wall. What if President Trump were to take the lesson from his predecessor and his congressional allies and simply order billions to be paid out of the Treasury? It would violate the Constitution and existing federal laws, but so did the Affordable Care Act payments. If that act would be outrageous in the eyes of members, then we have clarity on this issue. It is not the principle but the personality behind these orders.
When it comes to constitutional law, “good fences make good neighbors.” For whatever reason, President Trump has restored part of the wall that separates the branches. This is one wall that all members should be eager to maintain and, if belatedly, to protect as a matter of principle.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and served as lead counsel in the successful challenge to the Obama insurance payments under the Affordable Care Act. You can follow him on Twitter @JonathanTurley.