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 He rescinded an unconstitutional order by President Obama and restored the authority of Congress over the “power of the purse.”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].”

MORE STORIES FROM THE HILL

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. Make sure to look at the last paragraph that lists the people involved in the Russia investigation. It’s shocking for even Robert Mueller’s name is included proving that justice has been totally blind in the past administration and Mueller IMO is not being honest.

    Bombshell Revelations about Russia and Obama’s Department of Justice
    Posted: 17 Oct 2017 11:11 AM PDT
    (John Hinderaker)
    These extraordinary revelations, apparently from frustrated FBI agents, were published in The Hill today. The corruption they suggest is extensive:

    Before the Obama administration approved a controversial deal in 2010 giving Moscow control of a large swath of American uranium, the FBI had gathered substantial evidence that Russian nuclear industry officials were engaged in bribery, kickbacks, extortion and money laundering designed to grow Vladimir Putin’s atomic energy business inside the United States, according to government documents and interviews.

    Federal agents used a confidential U.S. witness working inside the Russian nuclear industry to gather extensive financial records, make secret recordings and intercept emails as early as 2009 that showed Moscow had compromised an American uranium trucking firm with bribes and kickbacks in violation of the Foreign Corrupt Practices Act, FBI and court documents show.

    They also obtained an eyewitness account — backed by documents — indicating Russian nuclear officials had routed millions of dollars to the U.S. designed to benefit former President Bill Clinton’s charitable foundation during the time Secretary of State Hillary Clinton served on a government body that provided a favorable decision to Moscow, sources told The Hill.

    Let that sink in. All of this was known before the Obama/Clinton State Department approved the controversial transfer of US uranium assets to Russia. But the Obama/Holder Justice Department did nothing.

    Rather than bring immediate charges in 2010, however, the Department of Justice (DOJ) continued investigating the matter for nearly four more years, essentially leaving the American public and Congress in the dark about Russian nuclear corruption on U.S. soil during a period when the Obama administration made two major decisions benefitting Putin’s commercial nuclear ambitions.

    The first decision occurred in October 2010, when the State Department and government agencies on the Committee on Foreign Investment in the United States unanimously approved the partial sale of Canadian mining company Uranium One to the Russian nuclear giant Rosatom, giving Moscow control of more than 20 percent of America’s uranium supply.
    ***
    In 2011, the administration gave approval for Rosatom’s Tenex subsidiary to sell commercial uranium to U.S. nuclear power plants in a partnership with the United States Enrichment Corp. …

    “The Russians were compromising American contractors in the nuclear industry with kickbacks and extortion threats, all of which raised legitimate national security concerns. And none of that evidence got aired before the Obama administration made those decisions,” a person who worked on the case told The Hill, speaking on condition of anonymity for fear of retribution by U.S. or Russian officials.

    It is a supreme irony that the Democrats have tried to make hay out of hypothetical connections between the Trump administration and Russia.

    As usual, the Obama administration defended itself in the uranium controversy with lies:

    The Obama administration and the Clintons defended their actions at the time, insisting there was no evidence that any Russians or donors engaged in wrongdoing and there was no national security reason for any member of the committee to oppose the Uranium One deal.

    But FBI, Energy Department and court documents reviewed by The Hill show the FBI in fact had gathered substantial evidence well before the committee’s decision that Vadim Mikerin — the main Russian overseeing Putin’s nuclear expansion inside the United States — was engaged in wrongdoing starting in 2009.

    Then-Attorney General Eric Holder was among the Obama administration officials joining Hillary Clinton on the Committee on Foreign Investment in the United States at the time the Uranium One deal was approved. Multiple current and former government officials told The Hill they did not know whether the FBI or DOJ ever alerted committee members to the criminal activity they uncovered.

    Russia’s bribery and extortion scheme was remarkably successful:

    The case also exposed a serious national security breach: Mikerin had given a contract to an American trucking firm called Transport Logistics International that held the sensitive job of transporting Russia’s uranium around the United States in return for more than $2 million in kickbacks from some of its executives, court records show.

    This was known early in the Obama administration, but Holder’s Department of Justice hushed up Russia’s crimes and hid the scandal:

    Bringing down a major Russian nuclear corruption scheme that had both compromised a sensitive uranium transportation asset inside the U.S. and facilitated international money laundering would seem a major feather in any law enforcement agency’s cap.

    But the Justice Department and FBI took little credit in 2014 when Mikerin, the Russian financier and the trucking firm executives were arrested and charged.

    The only public statement occurred an entire year later when the Justice Department put out a little-noticed press release in August 2015, just days before Labor Day. The release noted that the various defendants had reached plea deals.

    By that time, the criminal cases against Mikerin had been narrowed to a single charge of money laundering for a scheme that officials admitted stretched from 2004 to 2014. And though agents had evidence of criminal wrongdoing they collected since at least 2009, federal prosecutors only cited in the plea agreement a handful of transactions that occurred in 2011 and 2012, well after the Committee on Foreign Investment in the United States’s approval.

    The final court case also made no mention of any connection to the influence peddling conversations the FBI undercover informant witnessed about the Russian nuclear officials trying to ingratiate themselves with the Clintons even though agents had gathered documents showing the transmission of millions of dollars from Russia’s nuclear industry to an American entity that had provided assistance to Bill Clinton’s foundation, sources confirmed to The Hill.

    As a result, just about everyone was left in the dark about the extent of the corruption and national security threat that the FBI had unearthed.

    The lack of fanfare left many key players in Washington with no inkling that a major Russian nuclear corruption scheme with serious national security implications had been uncovered.
    ***
    Ronald Hosko, who served as the assistant FBI director in charge of criminal cases when the investigation was underway, told The Hill he did not recall ever being briefed about Mikerin’s case by the counterintelligence side of the bureau despite the criminal charges that were being lodged.

    “I had no idea this case was being conducted,” a surprised Hosko said in an interview.

    Likewise, major congressional figures were also kept in the dark.

    Of course they were.

    Ironies abound: who supervised the Russia investigation? Rod Rosenstein. Who was the FBI director when the Russia probe began in 2009? Robert Mueller. Who was running the FBI when the case ended with a whimper and an apparent cover-up? James Comey. How any of these people can participate with a straight face in an investigation into President Trump’s purportedly nefarious (but, as far as we know, nonexistent) relationship with the Russian regime is beyond me.

    This story belongs on the front page of every newspaper in the United States tomorrow.

  2. The long and short of it is that Congress adamantly does not want the responsibility of tackling difficult legislative questions.

    They can’t or won’t do their job.

    Although Obama’s application of executive order was Unconstitutional, Congress breathed a sigh of relief because he granted them plausible deniability. And Trump’s repeal of Obama’s illegal executive order is met with such rage because it puts the matter squarely in their laps when they want to throw it away like a hot potato.

    Sorry, Congress. This is your job. Figure it out. Not all legislation is going to be easy, like outlawing kitten abuse.

    • I would like to add that many here know how strongly I feel about Obamacare. The consequences of the ACA were severe on my access to affordable quality health care. I consider the ACA, as it currently stands, to be a humanitarian crisis for millions of people – the unsubsidized middle class individual policy holders, who are often small business owners. You know, The Enemy. Although I was eventually able to get free of the trap of an Obamacare individual policy, I cannot forget the millions struggling under it today.

      I personally feel that the only way that the victims of Obamacare will matter to the majority of those with employer policies, is for everyone to be in the same boat. As it stands, employers foot most of the bill for Obamacare, and their collective bargaining power, as well as their statistically healthier population, gives them the financial advantage. I think that employers should get out of the health insurance business. Everyone should get their own individual policy. That way, we are one collective bargaining pool of potential customers. The free market should match customers wants, needs, and budget with a policy. Don’t believe in abortion? There should be a policy that does not pay for it. And vice versa. We should all be able to shop around and match our own personal criteria with a policy that works for us, without our employer having to choose our insurance plan for us. That inserts someone into the mix who shouldn’t be there, and creates moral dilemmas unnecessarily. When a vote raises premiums and deductibles and copays on everyone, equally, perhaps people will take more care how they vote. As it stands, it is so easy to create more cost for employers. They always have a magic money tree to handle it, right? It’s sight unseen. And if they make hiring decisions based on increased cost of labor, then it’s clearly because they are greedy. But when such a decision impacts our own income, then we are just being responsible with our money and trying to make an honest living when we try to save it.

      This is so simple. Sadly, however, Congress doesn’t call me.

      This past election was the only glimmer of hope that Obamacare would finally be repealed. However, it appears that Independents, Libertarians, and Republicans had no thought that they would ever actually win the White House and Congress, ever. They were caught unprepared. Although there were plenty of solutions they had come up with, they had failed to work out consensus before hand on the off chance that they actually won. Here we are, almost a year later, with little movement on the issue.

      That is a slap in the face of anyone who voted for anyone other than a Democrat expressly to fight Obamacare. Is Congress going to come through for us, or not?

      • ” Everyone should get their own individual policy.”

        You are totally correct. Obamacare is an abomination that even Gruber admitted was a lie to the American people. It demonstrated how little concern the administration and the Democrats had for hard working people. All politics and no empathy. The Republicans are cowards. The fix is relatively easy though some will criticize me harshly for saying so. The socialist dreams are pie in the sky and don’t work.

      • Obamacare is unconstitutional.

        Congress may tax for general welfare not individual welfare – Article 1, Section 8.

        The justices of the Supreme Court should be in prison.

        Freedom and Self-Reliance are constitutional.

        Get a job. Buy insurance.

        Next case.

      • ” Everyone should get their own individual policy.”

        And we should have cheap air fares achieved by the suspension of gravity.

        Stable actuarial pools in the realm of medical insurance can form in just about two ways: they are defined by social forces which do not generate adverse selection, they are defined by the state, or they pointedly exclude troublesome clientele. If you fancy everyone should have ‘their own individual policy’, you’re going to have to craft a solution for those outside private actuarial pools, or go full Ayn Rand, or pretend that philanthropy can repair the problem.

        • Today, the federal government is subsidizing healthcare for most of the population.
          Most obvious is Medicare, Medicaid, and the VA
          All employers that utilize the tax deduction
          All those on subsidies under Obamacare
          All those that go to public hospitals recognizing they will not be forced to pay.
          Then the government subsidizes all sorts of centers including hospitals and medical schools along with the tax breaks the non-profits get.

          Let us not forget that until just recently we subsidized the insurance companies as well.

          All of a sudden you are concerned with how some people can carry health insurance if it is an individual policy. That seems quite odd to me considering the above subsidies.

          What you don’t seem to understand is that there are two types of sick people.
          1) Those that are sick and whose premium would most likely be high
          2) A much larger number of those that are already insured and become sick. Their illness is already incorporated into the premium that before there was so much government involvement was a lot lower.

          The answer to your query is to have a safety net, Medicaid that people can both buy into at relatively low cost or buy out of to obtain private insurance. When accounting for risks insurer’s do not take most risks into account, they use non-political fudge factors so that their premium covers everything and provides a profit. Most people can be insured privately. Those with difficulty could be subsidized either before or after the fact. High risks pools can work if we recognize that people must be responsible for their own care and pay what they are able to pay without government attempting to garner votes.

          One last subsidy provided to insurers and to the employer. Working people that get severely ill and can no longer work end up in the private market. Those bills are not being paid by the employer or the insurer after the designated time period has passed. Sometimes that period starts immediately when the patient ceases to pay for their own care. The entire attempt to socialize medicine by taking responsibility from the patient and placing it on government is a scam.

          • Household insurance policies won’t work as a social policy. You can replace the current financing system with household policies, but someone will have to come along behind you and clean up the social disaster you leave in your wake. Household policies have never been terribly common as a means of medical finance. Maybe 12% of the population had one in 1940. About 9% rely on such policies today, though a larger number have supplementary household policies.

            • DSS, I’m not interested in your social policies.

              Health insurance does not equal healthcare.

              Household policies were never the means of medical finance because of socialistic and voter garnering laws. The socialist policy you have adopted as your gold standard (which is yellow lead painted with a gold color) is one that gets rid of the sickest and makes them fend on their own, creates job lock, creates higher expenses, creates gaming, creates loads of wasted money, transfers money from the young to the old, and makes sure there are a lot of rent seekers around.

              I am sure I can add some more, but as far as I am concerned you can keep your “social policies”.

        • That’s how they do it in Switzerland.

          All policies are for individuals, created by private insurance companies. Basic plans are non-profit, and everyone adds on extras for which the companies do earn a profit. It’s only similar in concept rather than execution for Obamacare, and of course Switzerland does not have our massive level of immigration which strains our benefit structure.

          There are some pros and cons to this idea, of course. On the other side, there is absolutely no reason why the majority of Americans should get their insurance through their employers. That began as a perk, but it’s become increasingly expected while increasingly troublesome to employers. Employers should get out from between the individual and their insurance.

          I was actually not referring to a mandate, although my wording made it sound that way. That’s how Switzerland does it. The reason why there isn’t an existential crisis about it is because the cost is usually around a couple of hundred dollars for adults. Our mandate costs as much as a mortgage or buying a car every year. I am not enamored of the idea of a mandate. The alternative idea is if you could afford health insurance, but don’t buy it, then you are not entitled to free care.

          • Switzerland has a large population of guest workers &c. accounting for over 20% of their population, larger, in fact, than the immigrant share in this country.

            Again, the problem with these discussions is that the rendering therein of one country or another’s corporate architecture and means of finance has to be precise. If you get the features wrong, the discussion is of no value. Switzerland does not finance medical care through household policies vended on the market like property-casualty insurance. The Swiss market is a state artifact with coverage mandates.

            Employer-based plans have one utility: if the pool is large enough, it can be stable even if it incorporates the occasional employee with a chronic and / or pre-existing condition.

            • …And as soon as an employee becomes too ill he ends up becoming unemployed and then eventually ends up in the pool of self-insured who then have to pay more money to cover the risks of those that have left the safe pools of employer-sponsored health care. In the meantime, huge amounts of money are wasted by the employer pool because the employer buys the insurance, not the employee and in the past, it was beneficial to have lower deductibles because the tax break made low deductibles more valuable. In the meantime, there is no price shopping by the consumer so prices can remain high and middlemen can become involved in determining medical necessity when the patient should be the one to be involved.

              Employer plans “can be stable” as DSS claims, but at great cost to both the nation. Private insurance can be stable, less expensive, non-political without giving one group a tax benefit at the expense of the other.

  3. I am no constitutional expert but isn’t this executive order trying to circumvent the current case that is under review by the courts? Isn’t the President trying to do something that has already been brought before the courts that they have yet to make a final determination on? If the they rule that the earlier decision was correct and the subsidies are unconstitutional then the executive order becomes moot, if not then issue the the executive order. In the meantime would it be proper for this executive order to be stayed until the court issues its’ final ruling on the earlier case?

  4. I have Medicare, a BCBS supplement Plan F, and a drug supplement. Total cost is $300 monthly. I get 100% coverage for what Medicare covers. Medicare does not and should not cover everything – we cannot afford that. Except for $50 for an eye refraction and my deductible for drugs, my outpatient care of the past year was completely covered.

    It’s organized, simple, well managed. I get bills within a few weeks of visits. I love it. I wish we had a Medicare public option for those who don’t have insurance through other means.

    • Alabamagal,,,,
      The “total cost” of your Medicare is far higher than $300 a month.
      You may “pay $300 a month” for your Medicare coverage, but what you are paying is a fraction of the actual “total costs”. ..c. 40% of the Medicare program is funded by general revenues( tax dollars), and the additional payroll taxes (the Medicare part of FICA) are another major part of funding the program.
      Your $300 a month premiums are another source of funding, but come nowhere near the actual “total costs” of providing Medicare.

    • Ahh, the mellifluous tones of the voice of the artifice of “Affirmative Action Privilege,” “entitlement” and

      generational welfare, zealously executing the duties of the Feminazi Gaystapo.

      Merit shall have no bearing here!

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