Tag: POTUS

A New Legal Blow Against Obamacare

The federal district court sitting in D.C. yesterday handed a victory to those who believe in following statutory text, potentially halting the payment of billions of dollars to insurers under the Affordable Care Act’s entitlement “cost-sharing” provisions.

Since January 14, 2014, the Treasury Department has been authorizing payments of reimbursements to insurers providing Obamacare coverage. The problem is that Congress never appropriated the funds for those expenditures, so the transfers constitute yet another executive overreach.

Article I of the Constitution provides quite clearly that “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.” The “power of the purse” resides in Congress, a principle that implements the overall constitutional structure of the separation of powers and that was noted as an important bulwark against tyranny by Alexander Hamilton in the Federalist 78.

It’s a basic rule that bears repeating: the executive branch cannot disburse funds that Congress has not appropriated.

Accordingly, in a win for constitutional governance, Judge Rosemary Collyer held in House of Representatives v. Burwell that the cost-sharing reimbursements authorized under the ACA’s section 1402 must be appropriated by Congress annually, and are not assumed to be appropriated.

Judge Collyer gave a biting review of the federal government’s argument in the case: “It is a most curious and convoluted argument whose mother was undoubtedly necessity.” The Department of Health and Human Services claimed that another part of the ACA that is a permanent appropriation—section 1401, which provides tax credits—also somehow included a permanent appropriation for Section 1402. Hearkening to the late Justice Scalia’s lyrical prose, Collyer explained that the government was trying to “squeeze the elephant of Section 1402 reimbursements into the mousehole of Section 1401(d)(1).”

Indeed, this ruling is a bit of a feather in Cato’s cap as well. The legal argument that prevailed here—that the section 1402 funds cannot be disbursed without congressional appropriation—first was discussed publicly at a 2014 Cato policy forum. The lawyer who came up with the idea, David Rivkin of BakerHostetler, refined it in conjunction with his colleague Andrew Grossman, also a Cato adjunct scholar who spoke at the forum. After BakerHostetler had to withdraw from the case due to a conflict, George Washington University law professor Jonathan Turley (who also spoke at the forum) took over the case.

Judge Collyer stayed her injunction against the Treasury Department pending appeal before the U.S. Court of Appeals for the D.C. Circuit. Regardless of how that court decides – as in King v. Burwell, even if there’s a favorable panel, President Obama has stacked the overall deck – the case is likely to end up before the Supreme Court. If Chief Justice Roberts sees this as a technical case (like Hobby Lobby or Zubik/Little Sisters) rather an existential one (like NFIB v. Sebelius or King), the challengers have a shot. But because Democrat-appointed justices simply will not interpret clear law in a way that hurts Obamacare, this case, like so much else, turns on the presidential election and the nominee who fills the current high-court-vacancy.

Whatever happens down that line, Judge Collyer’s succinct ruling makes a powerful statement in favor of constitutional separation of powers as a bulwark for liberty and the rule of law.

Update (June 2, 2016): It has come to my attention that this suit was conceived in a different manner than described above. As seen here, here, here, and here, it was Florida International University law professor Elizabeth Price Foley who conceived of the lawsuit and developed it with David Rivkin, both in terms of legal doctrine and amassing political support in the House. We’re proud to have Foley on the editorial board of the Cato Supreme Court Review.

Presidential Arrogance on Steroids

“Obama said ‘so sue me.’ The House did, and Obama just lost.” That’s how the Wall Street Journal sub-heads its lead editorial this morning discussing the president’s latest court loss, nailing this most arrogant of presidents who believes he can rule “by pen and phone,” ignoring Congress in the process. With an unmatched record of losses before the Supreme Court, this onetime constitutional law instructor persists in ignoring the Constitution, even when the language is crystal clear.

Article I, section 9, clause 7 of the Constitution provides that “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.” Not much wiggle room there. So what did the president do? He committed billions of dollars from the Treasury without the approval of Congress. In her opinion yesterday Judge Rosemary Collyer noted, the Journal reports, “that Congress had expressly not appropriated money to reimburse health insurers under Section 1402 of the Affordable Care Act. The Administration spent money on those reimbursements anyway.”

George Washington Law’s Jonathan Turley, lead counsel for the House in this case, House v. Burwell, called yesterday’s decision “a resounding victory not just for Congress but for our constitutional system as a whole. We remain a system based on the principle of the separation of powers and the guarantee that no branch or person can govern alone.”

But don’t expect the president to be any more chastened by this decision than by his many previous losses in the courts. Indeed, as he was smarting from yesterday’s loss he was preparing, the Washington Post reports, to release a letter this morning “directing schools across the nation to provide transgender students with access to suitable facilities—including bathrooms and locker rooms—that match their chosen gender identity.” And where did he get his authority for that? Not from Congress. It’s based on his reading of Title IX of the Civil Rights Act of 1964 that for over half a century no one else has seen, doubtless because Title IX prohibits discrimination on the basis of sex, not chosen sex. Reading Title IX as we want it to be is of a piece with reading the Constitution that way too. Thus do objectivity and the rule of law fade into the rule of man.

Principal of the United States Returns

Today the POTUS – in this case, Principal of the United States – will give his third annual, national back-to-school speech, to be televised live by MSNBC. The immediate target, of course, is the kids, but I doubt it would be viewed negatively by the President if lots of adults saw or heard the  speech and thought, “Wow, this guy really cares about kids. I really like him.” And who knows, maybe footage of inspiring the children will make it into a campaign ad or two.

The speech itself, from what appears to be the early-release transcript, does seem to focus mainly on encouraging the kiddos. At least there’s that. But it also has some nice self- and special-interest-serving bits:

You’ve also got people all across this country – including me – working on your behalf. We’re taking every step we can to ensure that you’re getting an educational system that’s worthy of your potential. We’re working to make sure that you have the most up-to-date schools with the latest tools for learning. We’re making sure that our country’s colleges and universities are affordable and accessible. And we’re working to get the best teachers into your classrooms, so they can prepare you for college and a future career.

Now, teachers are the men and women who might be working harder than anybody. Whether you go to a big school or a small one, whether you attend a public, private, or charter school – your teachers are giving up their weekends and waking up at dawn. They’re cramming their days full of classes and extra-curriculars. Then they’re going home, eating some dinner, and staying up past midnight to grade your papers.

And they don’t do it for a fancy office or a big salary. They do it for you. They live for those moments when something clicks, when you amaze them with your intellect and they see the kind of person you can become. They know that you’ll be the citizens and leaders who take us into tomorrow. They know that you’re the future.

Probably the only big question stemming from this speech is why so little hubbub about it? In 2009 it was huge news. Today – almost nothing.

Certainly one thing is this year, unlike 2009, the Department of Education didn’t put out ham-fisted, potentially politicized teaching guides to go with the speech. And clearly the President’s supporters no longer have the same ardor they did in his early, far less bruised days. And it seems the White House just isn’t publicizing this address very much, maybe to avoid revisiting past acrimony, or maybe just to seem less intrusive in all aspects of American life than he did in 2009.

Or maybe it’s this: Like all unprecedented federal intrusions, once the precedent is set Americans just get used to it. And there are always new threats to battle, right? Meanwhile, freedom is eroded just a little bit more.

Now there’s a topic I’d like to see the Principal of the United States address.

Return to Debt Mountain

Last year I noted that the White House Office of Management and Budget homepage featured a call from the president to “invest in our people without leaving them a mountain of debt.” Yet, the Congressional Budget Office’s analysis of his then-current budget proposal showed that publicly held debt as a share of GDP would rise like the steep slope of a mountain under his policies.

The president’s latest budget proposal was released in February, and according to the CBO’s preliminary analysis, Obama would once again leave “our people” with a mountain of debt:

Given that the quote is clearly embarrassing, one would think that the White House would have taken it down by now. But it’s still there.

$61 Billion in Cuts in Perspective

Talk of a government shutdown is heating up. The current continuing resolution funding the government is set to expire on March 4th. Last week, House Republicans passed a bill that would fund the remainder of fiscal 2011 at $61 billion below fiscal 2010 levels. Senate Democrats are balking at the $61 billion in cuts and the president has issued a veto threat.

The following chart measures $61 billion in cuts against the president’s fiscal 2011 estimates for total federal spending, the deficit, and interest on the debt:

As the chart shows, the proposed cuts amount to less than a third of what taxpayers will pay in interest on the debt alone this year.

The $61 billion in cuts, which are woefully insufficient, would come from a relatively small category of government spending (non-defense, discretionary spending). However, that merely indicates the need to tackle defense spending and budget-busting “mandatory” programs. Unfortunately, the president’s latest budget proposal punted on these critical areas, and the Republicans have yet to put forth a plan let alone a coherent message.

Earmarks and the Constitution

Today POLITICO Arena asks:

Is Senate Minority Leader McConnell’s announcement yesterday that he will support a moratorium on earmarks a sign that establishment Republicans are caving in to the tea party faction of their party?

My response:

Far from a sign that ”establishment” Republicans are “caving in” to the Tea Party faction soon to arrive here, Senate Minority Leader McConnell’s announcement yesterday that he “will join the Republican Leadership in the House in support of a moratorium on earmarks in the 112th Congress” suggests that Republicans may be rediscovering their roots in limited government, however reluctantly for some. At the same time, McConnell’s unusually long press release brings out two main difficulties surrounding the subject: first, and most important, the overall growth of spending; and second, the question of who decides where that spending goes.

On the second question, McConnell is clearly right: It’s hardly an improvement if ending earmarks amounts simply to giving the president the discretion to determine where spending goes. And on that point he contrasts earmarks he himself has made toward projects that properly were federal – e.g., cleaning up a dangerous chemical weapons site in his state, which presidents in both parties had ignored – with the Stimulus Bill, “which Congress passed without any earmarks only to have the current administration load it up with earmarks for everything from turtle tunnels to tennis courts.”

To be sure, there’s enough mischief at both ends of Pennsylvania Avenue to go around, but it’s the growth of spending, most on matters unauthorized by the Constitution, that is far and away the larger problem. McConnell calls for congressional oversight “to monitor how the money taxpayers send to the administration is actually spent.” Far more important will be hearings to determine whether Congress has constitutional authority to appropriate money on any particular matter in the first place.

Thus, the new Congress needs to see through the false alternative the earmarks debate has engendered. At bottom, it’s not a question of whether Congress or the president shall decide. Rather, after administration input, all but ministerial spending decisions belong to Congress – as constrained by the Constitution. Thus, if the voice of the electorate is to be respected, new and old members alike need to attend first to their oath of office.