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.
There appears no end to the villainy of President Trump. This week, California Attorney General Xavier Becerra denounced Trump as nothing short of a saboteur while members have lined up before cameras to denounce his latest executive order as tantamount to murder.
His offense? He rescinded an unconstitutional order by President Obama and restored the authority of Congress over the “power of the purse.” The response to what Becerra called “sabotage” has been a call for a rather curious challenge where Democrats want the judicial branch to enjoin the executive branch from recognizing the inherent authority of the legislative branch. It is an institutional act that would have baffled the Framers.
I had the honor of serving as lead counsel, with an exceptionally talented team from Capitol Hill, for the U.S. House of Representatives in its challenge to unilateral actions taken by the Obama administration under the Affordable Care Act. In a historic ruling, U.S. District Judge Rosemary Collyer ruled in favor of the House of Representatives and found that President Obama violated the Constitution in committing billions of dollars from the U.S. Treasury without the approval of Congress.
The money went to insurance companies, even though Congress had rejected an Obama administration request for the appropriations. The case is pending on appeal, but the Trump administration has filed a notice with the D.C. Circuit that it was rescinding the order found unconstitutional by the federal court. The result of the order is to return the matter to the place where it should have remained: in Congress.
The ruling of the federal court was a triumph for those of us who have warned for years about the erosion of the separation of powers within our constitutional system. That high point in the judiciary followed a low point in Congress. In a State of the Union address, President Obama announced that he would circumvent Congress after it failed to approve measures in immigration and health care that he demanded.
This alarming declaration was met with an equally alarming response of rapturous applause by members thrilled by the notion of their own institutional obsolescence. President Obama proceeded to then assume the core defining power left to Congress under the “power of purse” in Article I of the Constitution. When Congress refused to appropriate money for subsidies for insurance companies, President Obama ordered the money from the Treasury through a claim of executive authority.
As affirmed by the federal court, the actions of President Obama directly violated the “power of the purse” clause of the Constitution, which provides that “no money shall be drawn from the Treasury but in consequence of appropriations made by law.” It also violated the federal law itself and the court declared that such actions “cannot surmount the plain text [of the law].”
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