Democrats Challenge The Right Of Trump To Rescind Obama Order That A Federal Court Declared Unconstitutional

donald_trump_president-elect_portrait_croppedHealth_Care_Delivery_System_Reform_and_The_Patient_Protection_&_Affodable_Care_Act.pdfThere 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 He rescinded an unconstitutional order by President Obama and restored the authority of Congress over the “power of the purse.”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].”


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.

147 thoughts on “Democrats Challenge The Right Of Trump To Rescind Obama Order That A Federal Court Declared Unconstitutional”

  1. The Supreme Court must declare taxation for individual welfare and the entire welfare state unconstitutional.

    Congress may only tax for “…general Welfare…,” not individual welfare and the Supreme Court must void all taxation for individual welfare.

    Any and all forms of redistribution of wealth, including welfare and affirmative action, are unconstitutional.

    The judicial branch must “…declare all acts contrary to the MANIFEST TENOR of the Constitution void.”

    The “manifest tenor” on taxation is “general Welfare” deliberately omitting and excluding “individual welfare.”

    Article 1, Section 8

    “The Congress shall have Power To lay and collect Taxes,…to…provide for the…general Welfare of the United States;…”

    Alexander Hamilton –

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

  2. President Obama knowingly (he is a Constitutional scholar after all) violated the Constitution.

    If this isn’t a High Crime or Misdemeanor I don’t know what is.

    1. Were Obama truly and honorably a constitutional scholar, he would have declared himself ineligible for the office because his father was not a citizen, as the Founders observed the definition of “natural born citizen” in the legal text and reference of the era, the Law of Nations, 1758, and all previous presidents adhered to the particulars of the definition in that document.

      The Jay/Washington letter of July, 1787, raised the presidential requirement from “citizen” to “natural born citizen” to place a “strong check” against foreign allegiances.

      The Law of Nations, 1758, Book 1, Ch. 19, Sec. 212, required that “…it is necessary that a person be born of a father who is a citizen;…”

      The Ben Franklin letter of Dec. 9, 1775, stated that the Law of Nations “…has been continually in the hands of the members of our congress, now sitting,…”

      To George Washington from John Jay, 25 July 1787
      From John Jay

      New York 25 July 1787

      Dear Sir

      I was this morning honored with your Excellency’s Favor of the 22d Inst: & immediately delivered the Letter it enclosed to Commodore Jones, who being detained by Business, did not go in the french Packet, which sailed Yesterday.

      Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the American army shall not be given to, nor devolved on, any but a natural born Citizen.

      Mrs Jay is obliged by your attention, and assures You of her perfect Esteem & Regard—with similar Sentiments the most cordial and sincere I remain Dear Sir Your faithful Friend & Servt

      John Jay

      Law of Nations
      Book 1, Ch. 19

      § 212. Citizens and natives.

      “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

      Franklin to Dumas, Dec. 9, 1775

      “I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly, that copy which I kept, (after depositing one in our own public library here, and sending the other to the college of Massachusetts Bay, as you directed, has been continually in the hands of the members of our congress, now sitting,…”

  3. Now repeal Obamacare.

    And, given the problem of wanting to change jobs and not being able to because of group insurance with the old company. These golden chains should be illegal. No employer to provide group insurance (neither health nor life). The employees salary would be increased to match what the cost was to the company.
    In order to make a smooth transition give new purchasers who already had group insurance a one-time exemption with any company that had offered group insurance to companies.

    1. Obamacare IS unconstitutional as it violates the “commerce clause” by compelling the purchase of a commercial product and by violating Article 1, Section 8 which limits the authority of Congress to tax solely for “general Welfare,” deliberately omitting and thereby excluding “individual welfare,” which is the purview of private, free market charity.

      Chief Justice Roberts declared Obamacare unconstitutional before he incorrectly, maliciously and treasonously declared it a tax. Per Article 1, Section 8, Congress may tax only for “general Welfare” not “individual welfare,” general being ALL such as in the case of roads, water, electricity, sewers, currency, post office, airports, et al.

  4. Question for Johnathon or his staff. About these insurance subsidy payments that were declared unconstitutional–why did you not seek an injunction to stop these payments. Or why was an injunction to stop these payments not issued by the court. If a court injunction to stop these payments had been issued ,then the court would be responsible and Trump would not have needed to rescind Obama’s unconstitutional executive order. Just wondering.

  5. Why is it no other advanced country has (or really wants) our health care insurance system?

    1. Why is it that leftists are all other-directed twits?

      No country has a health-care finance system which precisely replicates some other country’s, though you could likely build a taxonomy. If you want to draw from the experience of other countries, do it to observe the benefits and costs of ways of doing business, not because Scandinavia is coolio and Kansas is lame. You’re out of high school. Thinking that way is a sign of arrested development.

      1. Yeah, why are we 35th in healthcare per the Wirld Health Organization? Why are Danes, Swedes and Norwegian markedly happier than Americans?

        1. Marco since you are assuming you have some expertise can you provide how the WHO calculates that number?

          The number is not based upon outcomes, whether one lives or dies. They are based in part on sop to appease the minds of those that wish not to recognize the difference between science and science fiction.

        2. Actually, Scandinavia has a famously high suicide rate.

          why are we 35th in healthcare per the Wirld Health Organization

          Because they came up with a contrived scale of assessment.


              “Is it the long, dark winters facing Finland and Denmark that cause the problem? Or some kind of Nordic depression gene? Or none of the above? A new study suggests the problem is not specific to Scandinavia, finding that high suicide rates accompany high rates of happiness in comparisons of U.S. states as well.

              “Economists from the Federal Reserve Bank of San Francisco, the University of Warwick in England and Hamilton College in New York examined life satisfaction scores provided by 2.3 million Americans state by state, and comparing these with state suicide rates. Utah, for example, ranks highest in life satisfaction — but also has the ninth highest suicide rate in the U.S. The No. 2 happiest state is Hawaii, which comes in fifth for suicides. New York, in contrast, comes in 45th in life satisfaction but has America’s lowest suicide rate.”

                1. Anonymous, the link is fascinating. The outliers appear to be South Korea, Japan and Hungary. Since the data is old, I wonder if there’s a connection to economic contraction or financial crises and the like. Or if those three countries have had high suicide rates even when times were good. On the other hand, given the correlation between higher suicide rates and higher rates of life-satisfaction (a.k.a. happiness), I have to wonder whether one’s neighbors’ happiness makes some people suicidal. Yikes.

    2. “Why is it no other advanced country has (or really wants) our health care insurance system?”

      Because we are different.

      What language would Europe be speaking if during WW2 we were like France?

      Would you accept the same income as you would get in these countries whose income is not substantially derived from one type of resource?

      Do you think individual freedom is the same in these other nations as it is here?

      Are you willing to have government health insurance which grants you a space on the waiting line?

      Are you willing for your wife or daughter to have a mean 5 yr survival rate of around 65% or do you prefer the mean 5 yr survival rate to be over 90% for breast cancer or for the same country <45% mean 5 yr survival rate or a mean 5yr survival in the US that is over 60%?

    3. Jay, Ask them and ask them which outcomes they would prefer. The rating system those countries seem to like aren’t based upon outcomes (Will I live or will I die? Will I get better?) It’s all a matter of what type of metrics one chooses to rely upon. I rely upon outcomes because I am interested in living longer and being treated for problems in order to make my life better.

  6. Why would anyone defend big businesses getting tax payer money?

    Wow,this is not my grandparents’ Democrat Party. Then again, this is not my grandparents’ GOP either.

    The rule of law, Constitutional law, ethics and reality are twisted to fit agendas. All of this is so distorted that we have an entire generation that believe that everything is subjectively applied.

    It’s seems to me that critical thinking and reason is gone.

    At least POTUS is hanging out with Rand.

      1. If you would kindly write in English, it would be greatly appreciated.

  7. “No, I’m not. Read it again.”

    DSS, I already read it more than once. You added a refinement. That is all and probably taxed your brain to the limit to do so. Everyone here is free to look at both our comments and make their own judgments. This constant desire to prove how smart you are is seen throughout the blog.

    1. DSS, I already read it more than once.

      And misunderstood it more than once.

      A theoretical relationship is that, demonstrable graphically. The empirical dimensions are something else. They are demonstrated only observationally. It’s the empirical dimensions which are of primary interest to a broad public.

      1. DSS,This is such BS. We are not doing experiments on this blog and we can use empirical reasoning that can be disputed if a person chooses to use reasoning instead of cr-p you are providing right here.

        (Note these comments should be part of a discussion at the bottom of the page and refer to my statement “if we had Medicare for dogs the prices for veterinary care would rise precipitously to even greater heights.”

        Let me expand. My dog became ill with some major problems at a relatively elderly age. Since the funds existed he saw several specialists, had a lot of blood tests, ultrasounds, Ekg’s and even a CT scan. It was suggested that surgery would not work and radiation therapy was an option, but not proven to help and could hurt so we declined that treatment. The costs were quite high and most people would have stopped on day one which is more than appropriate for an older dog. Liquidity constraint didn’t enter the picture so we paid the money. Most people cannot afford that, but many would have gone a similar route had a Medicare program paid for it or if they too had enough disposable income provided to them. To think that a Medicare program for dogs wouldn’t raise the price is plain ignorance unless one has a good presentable reason why that is not true. You don’t have that reason and that makes you ignorant.

        1. Allan, your suffering from two problems here. One is a repeated inability to acknowledge that the phrase “rise precipitously to even greater heights. ” is a categorical statement about the dimensions of a problem and the contribution of particular vectors. The other is a chronic inability to leave well-enough alone in any exchange.

          1. DSS, what foolishness you are expressing. There is little doubt in my mind based on what I have seen that such a program ‘Medicare for dogs’ would relieve the owners of so much potential cost that they would spend much larger amounts in the veterinarian’s office. You can take the foolish opposite view.

            “The other is a chronic inability to leave well-enough alone in any exchange.”

            That is something inherent to you. In fact, you should never have started with such a poorly constructed argument.

            1. “Medicare for dogs’ would relieve the owners of so much potential cost that they would spend much larger amounts in the veterinarian’s office.”

              Woudn’t the flow of additional funds into the marked call forth additional supply lowering prices so it is an open question whether ‘much larger amounts’ would be spent in that market?

              1. bigfatmike, I am not trying to be insulting, but could you clarify your sentence? If additional funding leads to additional supply and that additional supply increased competition causing prices to fall, then though prices might fall total expenditures would likely rise. (This may or may not be answering your unclear question.)

  8. A federal court ruled the payments unconstitutional, the administration filed an appeal which has not been heard. The payments continued in the meantime. So there it languishes. Enter the current administration who has no constraints on making regular folks suffer.

    1. “the current administration who has no constraints”

      Betty, The current administration is following the law that was violated by the former administration under Obama. Doing so is a move in the right direction. More people have been hurt because of Obamacare than have been helped. The present President doesn’t tell the people that they will have to learn to live with low growth, instead, he acts so that growth rapidly increased and is now around the 3% level negating Obama’s way of depriving all Americans of a higher standard of living. Trump has decreased unemployment, raised wages and has the highest number of employed in recent years. Despite very stupid Democratic opposition and cowardly Republican actions, this President has done quite well.

        1. Which item is baloney Jay? You can go to the .gov websites and see the numbers for yourself. You can listen to Obama’s statement on video.

          I guess all your comments are based on what you wish to believe, not upon reality. That is ok Jay. It just makes you appear a bit foolish outside of your dreams.

      1. T rump cannot get any legislation thru Congress. He issues executive orders and gets sued. My dictater T rump is the best p grabbin POTUS we have ever had.

        1. Ken, Explain Obama’s we have to get used to less comment in light of the recent 3%GDP growth.

          Explain the employment and wage figures.

          Trump has never had a credible complaint against him regarding undesired sexual misconduct other than locker room talk, but I understand you may never have been in a men’s locker room. Don’t confuse such talk with the actual misdeeds of our former President, Clinton or Hillary’s spewing of lies and defamation about the women who made those complaints.

            1. Look at the numbers and look at the rates. Don’t show ignorance by citing one month when in the same month we hit the highest number of employed in a long time.

          1. So ya get to decide what ladies are credible. Sorry Charlie but neither T rump or Weinstein get to call the ladies liars.

    2. The Trump Administration is under no obligation to continue offering I-say-its-spinach legal arguments dreamed up by the Holder-Lynch Justice Department.

  9. “This week, California Attorney General Xavier Becerra denounced Trump as nothing short of a saboteur”

    Interesting choice of words given that “Awan routed data to a secret server linked to the House Democratic Caucus, which was chaired at the time by then-Rep. Xavier Becerra”

    “Police informed Becerra that the server was the subject of an investigation and requested a copy of it,” Daily Caller investigative reporter Luke Rosiak reported. Becerra then provided them with a fake server.

    “Authorities considered the false image they received to be interference in a criminal investigation …”

    0 repercussions.

    Now this guy is AG???



  10. Allan suggested, ” Think about liquidity constraint and how that affects your daily habits.”

    Admittedly, people who have no cash on hand and who cannot make a down payment to secure a loan cannot purchase much of anything at all, let alone affordable healthcare insurance.

    Is Allan further suggesting that healthcare savings accounts would solve the liquidity constraints for the foregoing consumers of healthcare goods and healthcare services?

    1. “Is Allan further suggesting that healthcare savings accounts would solve the liquidity constraints for the foregoing consumers of healthcare goods and healthcare services?”

      Diane, HSA’s are just one item that in our present situation have been proven to lower costs. Liquidity constraint is nothing new and not every dollar spent on healthcare is spent wisely. I think one could assume that liquidity constraint generally constrain’s spending and that if money was artificially pumped into one’s account at no cost spending would rise.

      1. Allan, I see no point to denying that healthcare providers have no incentive to lower their costs, or their fees for service, or their prices for drugs when they are guaranteed payment. I will also concede that if fewer people could afford healthcare goods and services, the cost might come down along with the average life-expectancy and the lesser number of Social Security and Medicare benefits being paid out to people who died sooner rather than later. I imagine that a major economic contraction might follow as well. Perhaps that’s not what free enterprises have in mind.

        1. “I imagine that a major economic contraction might follow as well. ”

          Diane, you imagine a lot of things and that is what gets you into so much trouble when you are forced to logically follow the flow of capital. You think that bureaucrats (that are the same humans as the rest of us) are capable of telling each individual what and how much to spend on things. That is what has made a bigger mess of healthcare than probably any other singular item.

        2. I imagine that a major economic contraction might follow as well. P

          I don’t think you could find an example of an example of a ‘major’ economic contraction derived from demand shifts in one sector outside of economies heavily dependent on export trade in one commodity. There was a small recession ca. 1927 traceable to production rescheduling in the auto industry. That’s the only example which comes to mind. Major contractions can derive from trouble in the financial sector, not other sectors.

          1. The financial crisis of 2008 was a major economic contraction in a sector not heavily dependent on export trade in one commodity. Oh! But was it a “demand shift”? Or was it a “liquidity constraint”? Or was it a “risk-management” failure? Isn’t the management of risk via interest rates in the mortgage-lending sector a liquidity constraint? Wasn’t that liquidity constraint removed via mortgage-backed securities? Didn’t the removal of that liquidity constraint cause the risk-management failure that caused the financial crisis and major economic contraction of 2008?

            If the average life-expectancy of Americans were to decline (?), the demand shifts would cut across all economic sectors involved in the trade in all commodities. There would be fewer and fewer business transactions involving fewer and fewer recipients of Social-Security and Medicare benefits. Admittedly, those demand shifts would “play-out” over the same extended time-period during which the average life-expectancy would be declining. So, instead of a major economic contraction measured on the quarterly time-scale, there would be a major economic contraction meted out on a generational time-scale.

            Would a generation-long economic contraction impose liquidity constraints on private enterprises conducting business in the free market?

              1. TSFS said, “Major contractions can derive from trouble in the financial sector, not other sectors.”

                TSFS neglected to say what causes “trouble in the financial sector.” Is it formally impossible that “trouble in other sectors” might cause trouble in the “financial sector”?

                P. S. Yada yada.

  11. The money goes to pay for the half million unnecessary administration jobs caused by the over 1,200 private health care insurance companies, the hundreds and hundreds of millions for their CEOs, private jets, yachts, etc. Yes appropriating funds to reduce costs for lower income people is right done in the wrong way. Create state administrations for the health care industry and automatically costs across the board will drop by 20%. A half million people will be out of a job but the people will stop subsidizing this parasitical disease called the private health care insurance industry. This is nothing more than the old diversion technique to take the focus off of the real problem. The real problem is not the subsidies but the parasites that prey on America’s health care system.

    1. “Automatically costs across the board will drop by 20%” with “state admininistrations for the health care industry”.
      And the average family will save $2500 a year with ObamaCare, and $3500-$5500 per year under BernieCare.
      As long as we’re picking numbers out of thin air, why not just claim 50-60% savings “across the board”.
      At least 50% of U.S. healthcare costs are ALREADY covered by government programs like Medicare, Medicare, tge VA system, CHIPS, etc.
      So a “20% across the board” savings would require at least 40% savings in the private sector, since we’re already supposedly benefiting from the “20% savings” with the government programs.
      And if the average income for an orthopedic surgeon in Canada is c.$225,000 v. $450,000 in the U.S., just keep telling yourself that these miraculous “administrative saving” will somehow close the gap between U.S. healthcare costs and other countries.

    2. “Create state administrations for the health care industry and automatically costs across the board will drop by 20%.”

      …And your proof is?…

      What healthcare programs does the government have control over?

      VA: Issac how come the VA isn’t the Garden of Eden you promise?

      Medicare: How come Medicare costs keep spiraling upwards as government exerts more and more control? Are we getting the benefits from Medicare per dollar spent? This is government-run health insurance for virtually everyone over the age of 65.

      Medicaid: How come the Oregon Study, which was completely random as to who was on Medicaid and who wasn’t, didn’t show significant benefit for those that were placed on Medicaid?

    3. Create state administrations for the health care industry and automatically costs across the board will drop by 20%.

      Standard progressive philosophy: Increase the size of government and and the people’s lives will be better for it. It’s difficult to believe this idiotic philosophy still has private sector supporters.

      1. Olly

        I’m talking about decreasing the size of the insurance industry. You’re advocating paying more for unnecessary jobs, or subsidizing: half a million clerks, CEOs, their jets, yachts, shareholder profits, etc. The dozens of countries that have better systems that are government based with private optional coverage, pay a fifth of what we pay for administration. Your logic is somewhat flawed.

        1. Issac, The ever-increasing size of our insurance agency is due to a shift in the direction of socialism. You are right we have to move towards a market-based system for that would reduce all these unnecessary costs. It would even free up physician time for the biggest time wasters in a physician’s office government are the ever-growing regulations and requirements.

  12. Life is not a picnic.
    Those who work will always have
    Health Insurance.
    Wake up America this not a
    Banana Republic.

    1. TSFS, in the interest of clarification, are the rent-seekers the politicians and the side-payments the premium subsidies to health insurance companies? Or are the health insurance companies the rent-seekers and the side-payments are campaign contributions to politicians?

  13. Newsflash! Almost to a man, politicians within the Democratic Party are totally unprincipled on procedural matters and fancy the courts are just an instrument for them to get what they want. Come to think of it, so are most of the judges they put on the bench.

  14. “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.”

    Professor Turley, your clients are swamp creatures. Do you think that they would challenge Trump in court if he started doing something like you suggested in the quote above?

    I’m not arguing with your logic. It’s sound, even though it is not clear that your clients have standing to sue. But the Mitch McConnells of the world, in the House and the Senate, lit the fuse on this bomb when they swore a (not so) private oath to obstruct Obama across the board. Obama deserves criticism for what he did, but so do your clients.

    It’s no different than the fuse lit by McConnell when he refused to move forward with a vote on Merrick Garland, except we can’t see around the corner. So we don’t know what happens when the bomb connected to that fuse goes off.

    1. Partisan Democrat bitching and moaning that the political opposition doesn’t roll over and play dead. The world would be a better place if you all would lose the entitement mentality, but that’s not going to happen.

    2. Oliver Clozoff, Where have you been? Busy with important work, one presumes. Still, your absence has been most sorely felt; even though the work here is probably far less important than whatever you’ve been up to out there in the real world. Oh! Won’t you stay just a little bit longer?

      1. Late4Dinner

        I’d stay longer but the nature of many of the conversations has deteriorated. I’m pretty sure that the folks in Dante’s Fifth Circle of Hell are forced to read all of the posts by TSFS, DSS, Toads, or whatever nom de plume is used.

        1. “I’m pretty sure that the folks in Dante’s Fifth Circle of Hell are forced to read all of the posts by TSFS, DSS, Toads, or whatever nom de plume is used.”

          : )

        2. I’m pretty sure that the folks in Dante’s Fifth Circle of Hell are forced to read all of the posts by TSFS, DSS, Toads, or whatever nom de plume is used.

          My posts bother dopey partisan Democrats, anti-semites, and professional atheists. Your imagination about where such people reside in the hereafter I’ll take as an admission against interest.

          1. As a professing atheist and partisan Democrat, your posts whet my appetite no less effectively then Pavlov’s infamous dinner bell made his eponymous dog salivate. Hence my current nom de plume is a damnable lie.

            P. S. Exactly which mortal sin gets one consigned to the fifth circle of the Dante’s inferno? I have a need to know. I can’t stop being late for dinner now.

          1. Thanks for answering my most recent question, Allan. Gloating is the sin that gets one consigned to the fifth circle of Dante’s Inferno.

            1. Diane – gloating is not a mortal sin. Only mortal sins send you to hell.

              1. Paul, they say Dante came up with his own alternative list of mortal sins. Especially ones that would put Pope Gregory XII in hell. Dante even came up with one that sent him to hell–unrequited love. I figure gloating or the equivalent might as well be on Dante’s list. Or we could make our own lists–you know, for rhetorical purposes.

                1. “we could make our own lists–you know, for rhetorical purposes.”

                  Diane, you are very good at that, especially when discussing the political economy.

            2. Gloating, Diane? Where was the gloating? I used to occasionally meet friends at a bar called the Ninth Circle and it was a lot of fun.

    3. “Do you think that they would challenge Trump in court if he started doing something like you suggested in the quote above?”

      I’m not convinced they’d sue Trump in court, but I absolutely believe that if Trump stole billions of dollars not appropriated by Congress the way Obama did, Congress would somehow act to try to restrain him. Just look at the record. After Trump was elected, one of the first acts of the Republican controlled Congress was to open at least three Congressional investigations into his campaign based on not much more than rumor and innuendo. Then the AG – appointed by Trump – named a special counsel to investigate.

      I think Obama got away with his many usurpations (DACA, Clean Power Plan, this unauthorized theft of billions to pay off insurance company cronies) because neither the current batch of elected Democrats nor their base, nor the media, care about restraining unauthorized executive power provided they like the results. And they are even less inclined to do anything provided the president is the first half black president who passes himself off as black.

      Democrats will do nothing to jeopardize the near monopoly they have on the black vote, including restraining a president who usurps the legislative authority of Congress. Blacks are 13% of the population. No Democratic presidential candidate in the past 50 years has gotten less than 85% of the black vote. Democrats know that if blacks ever decide to not vote as a bloc for Democrats, they may never win another election. They will do nothing to alienate them.

      It’s impossible for a rational person to imagine Nancy Pelosi or Harry Reid or Chuck Schumer ever calling for Congressional investigations of Obama’s usurpations and abuses. In fact, the record shows they stood and gave him a standing ovation when he announced he was going to use his “pen and his phone” to usurp their authority. It’s equally impossible to imagine Eric Holder doing what Jeff Sessions did and calling for a special counsel.

  15. The legal issues flows from, the public policy side. Some Republicans and conservatives don’t want health care to be an entitlement. They do not want the affluent to pay taxes that will be used to subsidize heath care for lower SES families and individuals.

    So the essential question is should the society assure that everyone has access to health care or do we turn our backs on those who cannot afford it?

    1. That is a political question not a legal one.
      Our courts are not there to decide policy.

      As a political one it is a very bad one.

      Humans are born with liberty and rights – not entitlements.

      What republicans want is an end to theft from the most productive, at the expense of the lest productive.

      The essential and only question is when is confiscating what is not yours by force justified.
      This is not when.

      A man said to the universe:
      “Sir I exist!”
      “However,” replied the universe,
      “The fact has not created in me
      A sense of obligation.”

      You are free to engage in whatever charity you wish.
      You are free to attempt to persuade others to do so.
      You are not free to command anyone to do anything.

      1. dhii, Do you really want humans to be as sublimely indifferent as the universe? Your complaint against forcible confiscation suggests otherwise. Even so, “Congress shall have the power to levy taxes . . .” Not The President. So how will Congress appropriate 1.2 trillion dollars a year for defense spending, anyhow?

        1. Do you really want humans to be as sublimely indifferent as the universe?

          What I want is for humans to not infringe the natural rights of other humans. But what I want has proven throughout history to be something impossible to expect. This is why government exists in the first place. So now I want government to honor their oath and function with the powers it was provided. And not engage in the very infringement of rights they are sworn to protect.

          Your support for forcible confiscation through the levying of taxes suggest you don’t care about the constitutional purpose for government; just the weaponized purpose to provide whatever your human nature desires.

          1. Olly, I have no desire that Congress should forcibly confiscate our tax dollars for the purpose of appropriating 1.2 trillion dollars a year in defense spending. I strongly suspect that we could still have the best trained, best equipped armed forces in the history of the world with as little as 400 billion dollars a year in defense spending.

            P. S. A fair bit of individual welfare accrues to private investors in private corporations holding defense contracts in defense industries that follows from the general welfare of defense spending. When we have public/private partnerships comprising a military/industrial complex–which we do–the distinction between individual welfare versus general welfare looks more like an exercise in hair-splitting than an observation about reality.

  16. For a Constitutional scholar, Obama didn’t know diddle about the Constitution. Trump will win this hands down.

    1. There’s the actual Constitution and then there’s the mass of case law appellate judge shysters have generated to give progtrash what they want. BO almost certainly cared nothing about the former.

      Wm. Dyer commenting on BO’s career at the University of Chicago remarked that he’d be much more impressed had BO taught tax law or commercial law. The problem with constitutional law, per Dyer, is that it’s the subdiscipline of law for which it’s the easiest for the instructor to fake it. NB, in 12 years in the employ of the University of Chicago, BO published 0 scholarly articles. What gets you about the man is that he’s had a simulacrum of an adult work life, not the real thing.

  17. Although I salute you for your service to our Country, the problem is that it seems that under the guise of litigation, the ordinary folks are being left out–as health costs spiral out of control and the only implicit message (not withstanding the spin from Congress and the White House) is this: Don’t get sick or else. It seems to me that for a country that sent a man to the Moon and mapped the Solar System, we should have the ability to ensure some measure of health security for all Citizens–As of now, thanks to this very litigation and governing by Executive Action (that the current @POTUS attacked mercilessly) it seems as if Healthcare is a privilege for the few.

    1. So Congress needs to appropriate the funds. Elect a Congress which will do so, preferably veto proof.

      1. Nothing new there it’s been that way for 241 years . the corollary is and don’t allow those who prefer one man rule and disenfranchising the citizens to ignore the rule of law.. The Plato system doesn’t work and Plasto himself was the first to recognize his system major fallacy.

      2. During the post-war period, you’ve had notionally ‘veto-proof’ majorities in Congress for all of about 4 years. It’s a good thing two, given what an irresponsible racket the Democratic Party is.

    2. You should look a little deeper. The purpose of ACA was not to provide health care but to take over control of one more segment of societies basic needs and through it more control of the finances of the nation, government or private or individual. Health had little to do with it as the outcome of a very poorly conceived plan showed.

      Coupled with that was the simultaneous attack on the money supply of the elderly using the cycle of economic repression. Heavy bororowing to inflate the money supply to bring about the inevitable devaluation of the dollar. It’s not cui bono but cui doesn’t bono when a 30% (not guesswork) devaluation takes place and the CPI very carefully and none to artfully dodges the expensive items with massive cost increases but then claims the cost of living therefore the COLA should be only a few tenths of a percent. Never mind the cost of food and the government caused housing bubble.

      While I might add the chief perpetrators went on to million dollar a year jobs (Dodd) and later received a 12% increase to match our point zero two COLA.

      Food, Medicine and medical services, all went iup. as the dollar declined 30% in value from 2000. Sure fuel went up then down but it still needs three dollars to pay for what used to be a two transaction and that with after tax dollars and before sales taxes

      You see you can’t look at just one item but a mix of weaponry was used in that attack.

      As for this President.? He looked at a failing system and did the only humane thing. Put it to an early death so it can be replaced. Beginning; with stealing money from those who do not wish to participate without benefit of probable cause nor trial by judge nor jury and did not waste time doing so. And all the opposition cared about was their legacy. and obstruction and voting no and back stabbing/.

      The worst is embodied in your first statement. Those of us who serve and have served never served the country nor the people as such. Your statement is as false as referring to ‘our democracy’ which not ony does NOT exist but was rejected out of hand by the founders.

      Our allegiance is to the Constitution and nothing else. Same Oath the last President took and violated from day one. Same oath all elected and many appointed officials take and too many violate from day one.

      This President is setting speed records getting these problems before the two entities authorized to do something by judiciously using executive orders. You see the Constitution does not allow a dictatorship no matter how well meant it might be. DACA and the medical situation, and the rest are before both the Congress and the Supreme Court. Something the last regime failed to do using the excuse… oh well it hasn’t been visited by the Court yet or Congress turned it down I’ll do it anyway.

      And that is Obama’s legacy. A failed dictatorship.

      Back to the point You can’t fix something by continuijng to lie, cheat, steal your way to an answer. You can’t keep buying iyour way to a solution when there is no money, no credit, no faith, and only fear as a backing for your currency.

      Better a little pain now and some corrections and far better a ballots not bullets change in leadership than the other choice. Although some people were really stupid enough to call for martial law. Do you really know what that means> The military takes over. Completely.

      And now they can use the Patriot Act provisions OBama extened in both scope and time and whoops what happened to probable cause? Gone. What happened to civil rights? Gone.

      Be damn glad the military did prefer ballots over bullets. it was, this time, the best of the two solutions. But a soution was necessary

      Janet Neapolitano was correct when she mistakenly alerted all of us and caused us to band together and that produced this President as a by product of the unacceptable other choice.

      “Support and defend the Constitution of the United States against all enemies, foreign and domestic;…) i don’t see you in that list of one item. But be damn glad the active military helped us and pointed out the legal route that is required and be double damned glad they insisted on ballots vs bullets.

      40% of the ballots cast were not by Republicans nor Democrats nor Libertarians nor Greens. And with them splitting 60% our 40% was enough to ensure our Representative Constitutional Republic was supported and defended. The difference now is we took a gamble and found out to our delight we could use ballots not bullets.

      And later found out our outsider non politician candidate was by far the better choice than any other offered.

      Not bad for a bunch of individuals with zero funding just a few computers and wifi hookups and a good working knowledge of counter revolutionary operations.

      But it’s not over….

      So take your sows ear purse and quit pretending it’s made out of silk, it’s made out of despair. Just to mix metaphors. Or as Churchill stated. Capitalism never guaranteed equal results of happiness but absolute Socialism absoutely guarantees equal portion of misery….except for their ruling class.

      Take a look at what Sweden did and from another start point what China IS doing. Market Capitalism with with a social conscience a cognitive conscious awareness – and then like Sweden ban welfare.

      You’ll find the amount of people not covered will shrink to manageable proportions. .

      Greetings from the unaligned non represented self governing citzens of the Constitutional Center of this representative Constiutional Republic..



        1. DSS, “)” had something to say. We all recognize that you prefer a writing style that is pithier. That is what you want, but he wishes not to spend the time editing. You complained about another who also wasn’t pithy, but was quite consistent with regard to his ideology.

          Why not deal with substance? This comment you made adds nothing to the present discussion.

          1. Just about every paragraph in his posting is confused rubbish. He could at least make it confused rubbish with brevity.

            1. “Just about every paragraph in his posting is confused rubbish.”

              DSS, I note with all his supposed “confused rubbish” you didn’t add anything to the discussion by explaining where he went wrong. That can only lead us to the conclusion that he made statements the quality of which has to be evaluated by another. Your inability to make sense of what he said is more your problem than his.

              1. you didn’t add anything to the discussion by explaining where he went wrong.

                Well, no, I didn’t. I don’t analyze the collected ‘thoughts’ of John Hinckley either.

                1. “Well, no, I didn’t.”

                  End of discussion. You like to complain but frequently when forced to defend such a complaint you run away and hide adding a few dissociated facts.

                  1. Allan, there isn’t any thing to ‘analyze; in his post because it is barely coherent. If he said ‘oodles of green noodles make blue poodles jump der shtrudle’, I cannot analyze that. He jumps the shark in the 2d paragraph with : “Coupled with that was the simultaneous attack on the money supply of the elderly using the cycle of economic repression. Heavy bororowing to inflate the money supply to bring about the inevitable devaluation of the dollar”. This is just gibberish. He hasn’t a clue what he’s talking about.

                    1. DSS, I won’t speak to what ‘C’ is saying or whether or not I agree with him. You told him that what he said was rubbish. You weren’t forced to read it or comment on it, but since you called what he said rubbish you should be mentioning the things you don’t agree with. You did this with Dhlii who was very accurate in stating a position so you lost a lot of credibility.

                      In this case, to resurrect yourself you provided snippets, but did you actually rebut his point? No. You pulled out to prevent any pregnant thoughts from developing. This seems to be your modus operandi.

    3. Why should we have this ability ? Magic ?

      We are unable to prevent huricanes. I would like it if we had the power to prevent huricanes – but we do not.

      It is hubris to beleive that by stealing from others we can somehow make everything better.

      Heatlhcare is a priviledge.

      Free markets takes things that are priviledges and make them so readily available they appears to be rights.
      But government can not do the same.

    4. Gross output in the realm of ‘Health Care and Social Assistance’ accounted for 5.3% of all gross output in 1997 and accounted for 7.3% in 2016. To some extent, that’s driven by demographic shifts as a larger share of the population is in the older age groups. To some extent, that may be driven by changes in allocation as society grows more productive and affluent. The share accounted for by groceries consumed at home is a great deal smaller than it was 50 years ago. To some extent, it’s the dysfunctional price system in medical services (which is in turn in part a consequence of third-party payment).

      You’re trying to compare a technological achievement with a social challenge – the social challenge being to contrive a cost-allocation scheme which can make it through a political system which produces spaghetti logic and side-payments. Not sure why you’re making that comparison (except as a shizzy rhetorical device).

      1. Did the free market land men on the moon? Did the free market develop the technology for the mass production and mass distribution of penicillin and other antibiotics? Did the free market develop the container ship, containerized ports, the intermodal transportation system and the bar-code scanner technology to keep track of all of the stuff being moved from China to a Walmart near you?

          1. Paul C. Schulte,…
            Just to expand on your answer:
            NCR ( formerly National Cash Register) introduced barcoding in 1974.
            I think Merck was the first company to mass produce penicillen.
            NASA had a large number of contractors….IBM, Northrup Grumman, Lockheed, Martin Marrieta, and dozens of other companies that manufactured components for the Apollo project.

          2. No, Paul. The War Department, The Department of Agriculture and the United States Department of Defense paid for the research and development of every technology I listed in my questions except for the lunar landings–which led to major spin-off technologies in building materials such as PVC pipe and rigid foam insulation and more besides.

            The free-market hucksters take way far too much credit for government work funded by US taxpayers. They don’t call it the military-industrial complex for nothing.

            1. “The free-market hucksters take way far too much credit”

              Diane, It is what you call the “free-market hucksters” that have made the standard of living so high in this nation and have helped to elevate the standard of living all over the world. Without capital, the White House couldn’t even mow its lawn.

            2. Diane – Fleming discovered penicillin by accident but didn’t know what to do with it. It would be 4 years before 2 other scientists figured that out. Research scientists either work for a university or a corporation. They rarely have unlimited funds so they are always begging for funds from the government if they work for a university.

              1. Paul, the story of penicillin is long and complicated. Nevertheless, the following sentence from the Wikipedia article on the subject has not been disputed.

                “As a direct result of the war and the War Production Board, by June 1945, over 646 billion units per year were being produced.”

                BTW, Merck worked with the USDA on small-vat production of penicillium notatum. USDA had been growing the stuff in very large corn-liquor tanks that had issues with energy inefficiency. Public/private partnerships were commonplace for the USDA, the War Production Board and eventually what Eisenhower dubbed the military/industrial complex. And the only problem I have with that is giving all of the credit to the private sector and none of the credit to the public sector.

                1. Diane – the DoD needed the drug to cure the STDs plus some infections that were rampant during the war. This you have to blame on FDR who set up the War Production Board which controlled all production in the USA during the war. You even had to have little booklets of coupons that allowed you to buy certain things at a certain time. My grandmother kept her coupons long after the war ended.

                  1. Paul, here’s another sentence from the same Wikipedia article as the previous one.

                    “During World War II, penicillin made a major difference in the number of deaths and amputations caused by infected wounds among Allied forces, saving an estimated 12%–15% of lives.”

                    Meanwhile, I don’t see how wartime rationing prevented private enterprise from funding the research and development of the technologies needed for the mass-production and mass-distribution of penicillin and other antibiotics. It looks to me like private enterprise got involved because the governments of The US, The UK and France were paying for the R&D in an effort to win the war; and because those governments offered licensing agreements to private enterprises that participated in the R&D and the war effort.

          1. Some instances of government spending pay quite handsomely to private enterprise. And private enterprises in the healthcare industry have benefited greatly from The Medical Revolution as well as Social Security, Medicare and Medicaid. The only argument that does not follow is your refusal to follow the argument.

            Unless you’re referring to Turley’s OP.

            1. “government spending pay quite handsomely to private enterprise. And private enterprises in the healthcare industry have benefited greatly from The Medical Revolution…”

              Diane, the question is whether the spending was appropriate and whether it benefits the nation and its people in both the short and long term.

              1. Allan, I agree to your framing of the question. I suspect that we will disagree on the framing of the answer. But I wouldn’t want to jinx it with premature negativity.

                BTW, Where is this Michael Applebaum fellow, anyway? Busy with important work in the real world, like Oliver Clozoff?

                1. “Allan, I agree to your framing of the question.”

                  Diane, you agree yet you use your “framing” in argument. In fact, you really don’t have an argument or at least one that is consistently logical and doesn’t require force.

                  “Where is this Michael Applebaum fellow, anyway?”

                  Why don’t you tell us which Michael Applebaum you are talking about?

                  1. The Micheal Applebaun who authored “The Health-Care Debate We Should Be Having: Part I”

      2. DSS, I am glad to see today’s recognition of third-party payer as a major problem regarding the costs involved in our healthcare system.

    5. “the ordinary folks are being left out–as health costs spiral out of control ”

      Mikepouraryan, Healthcare costs a certain amount of money which I hope you understand. What caused healthcare costs to spiral out of control above and beyond those costs must, therefore, be your question? If so the answer is quite clear, too much government involvement in a sector of the economy where the desires of the individual can collectively increase costs until no money exists, has been a major factor. Think about liquidity constraint and how that affects your daily habits.

      1. If so the answer is quite clear, too much government involvement in a sector of the economy

        Cue Mandy Rice-Davies. You’ve had a similar revolution in the share of gross output attributable to veterinary services without 3d party payments at all. The FIRE sector is proportionately far larger than it was 70 years ago. All sorts of vectors at work there.

        1. Yes, DSS, many things are involved and if we had Medicare for dogs the prices for veterinary care would rise precipitously to even greater heights. Healthcare costs are going to be high to provide for the triad, cost, quality, and access, but government overinvolvement has led to costs being much higher than necessary. This doesn’t mean no government involvement for government exists to enforce contracts. It also does not exclude subsidies though I am sure the debate on subsidies entails greater disputes.

          1. if we had Medicare for dogs the prices for veterinary care would rise precipitously to even greater heights.

            No, your consumption of veterinary care would increase to a point higher than what it otherwise would be. The magnitude and dynamic effects would be consequent to a number of unspecified ifs.

            1. “No…”

              DSS, you are pretty much saying the same thing with a bit of refinement after you taxed your mind trying to figure out a way to ease in your comment as a disagreement with another. That doesn’t change the statement I made. “if we had Medicare for dogs the prices for veterinary care would rise precipitously to even greater heights.”

              1. DSS, you are pretty much saying the same thing with a bit of refinement

                No, I’m not. Read it again.

                1. DSS, I’ll accept your answer as the best you can do, but it is wrong. The only question is if a Medicare program were provided for the treatment of dogs would the costs rise or fall? Considering how Medicare managed today a lot of dogs that are put down would be kept alive utilizing expensive treatments. That would cost a lot of money. Of course all this opinion so you are free to believe that veterinary costs would not rise if a Medicare-type of program was put in place for dogs.

                  I’ll leave the decision of who is right and who is wrong to the individual.

                  1. Allan, are you arguing that when the government removes a liquidity constraint from household budgets, the ensuing household spending drives up the prices (or the cost) of the goods or services being purchased?

                    1. The government does *remove* liquidity constraint from household budgets. It can influence the budgets and spending by changing the dynamics.

        2. TSFS said, “The FIRE sector is proportionately far larger than it was 70 years ago. All sorts of vectors at work there.”

          One wonders if two of those “vectors” might have been The Kemp/Roth IRA and whatever Congressional Act allowed the 401K?

          1. National income accounted for by the FIRE sector was about 9% in 1948, 13% in 1978, 16% in 1987, 19% in 2000, and stands at 17.5% today. The Bureau of Economic Analysis has withdrawn from circulation much data covering the period prior to 1997, so you have to look offline for that now. At one time they did publish data online which indicated the share accounted for by the insurance business hadn’t changed much over that time, that accounted for by real estate had hit a plateau around 1985, and that accounted for by finance around 1998. The rate of increase in shares was more rapid during the period running from 1978 to 1987 than it was earlier and later, but the phenomenon was present throughout the postwar period.

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