Patterico's Pontifications

5/13/2016

The Power of the Purse Hangs in the Balance

Filed under: General — Patterico @ 7:36 am



I’m going to give you the very simple version of yesterday’s ObamaCare decision. (Full analysis here.)

Congress didn’t appropriate the money for certain payments to insurers. Therefore, Obama cannot spend it. The end.

One other interesting point that I learned reading the opinion: the same does not apply to subsidies to individual taxpayers. Congress does not have to appropriate money for that every year. Once Congress classified them as tax credits, the money was permanently appropriated, because the IRS already has authority to draw money on the Treasury to pay tax refunds/credits. The only way to repeal this is to pass a new law that repeals the subsidies, and get that law signed by the President.

This is a hugely important decision. Not just for ObamaCare but for our nation. If it is overruled, on standing grounds or on the merits — under the “we’ll rewrite any law to save ObamaCare because it’s Too Big to Fail” principle that generally obtains in the Supreme Court on ObamaCare cases — then the power of the purse is dead. The President will be able to spend money on anything he likes, and Congress can go hang.

36 Responses to “The Power of the Purse Hangs in the Balance”

  1. Ding.

    Patterico (86c8ed)

  2. ohnoes

    sleazy pervert john roberts is about to get blackmailed again

    hard

    happyfeet (a037ad)

  3. D.C. Circuit will reverse. I don’t know how. The House has standing under the Constitution. And they didn’t appropriate the money.

    But the court is stacked with nuclear-option judges whose mission is not to read the law, but rather to crusade for Obama.

    Patterico (86c8ed)

  4. ohnoes

    sleazy pervert john roberts is about to get blackmailed again

    hard

    happyfeet (a037ad) — 5/13/2016 @ 7:48 am

    ohyesses

    sleazy robertses will find a way

    find a way hard

    be nice if the repubs could actual pick good justices

    but what till you see what trumpadump picks

    he’ll make robertses look like scalia

    and he’ll make food stamper’s ignoring the conconcon look like wonderful

    it’ll be great i tell ya great

    sadfeet (ddead1)

  5. will reverse. I don’t know how. The House has standing under the Constitution. And they didn’t appropriate the money.

    It’ll be the standing issue. Standing is the way courts get out of doing their jobs.

    I get it, we don’t want courts wasting their time on pointless things. But if it takes more than a quick though to dismiss a case on standing, and if the issues involved are important, standing should be granted.

    Nonetheless, great to see one judge get it for now.

    Patrick Henry, the 2nd (1115be)

  6. If the House doesn’t have standing, who does? What’s it going to be, a qui tam lawsuit?

    Ingot (8261b7)

  7. If I were dead set on reversing this, I’d use the 4th Amendment, and claim that Congress ordered private insurers to service a class of people at a set rate, with a promise of payment and this constitutes a binding contract and the fees must be paid, or else it constitutes an unlawful taking.

    Question: What happens if the US loses a federal court case and is ordered to pay damages? Does Congress have to authorize the payment? What happens if they don’t?

    Kevin M (25bbee)

  8. If the House doesn’t have standing, who does?

    Since it is about spending money without Congressional OK, perhaps a taxpayer? Clearly if the money is not forthcoming to an insurance company, they would have standing to sue. A court might even let them intervene in this case.

    Kevin M (25bbee)

  9. The House has standing under the Constitution.

    The opposition argument seems to be that the payments were “permanently appropriated” and Congress would have to explicitly cancel that before they’d have standing. Arguing that the appropriation was NOT permanent is “disputing legal interpretation” and Congress never has standing to do that.

    Of course, this kind of assertion of “hidden appropriation” could be used to obviate all Congressional attempts to cut off funds through inaction.

    As in: “Oh, but we have the right to spend all the money we want prosecuting the war against ISIS because of the 2003 AUMF against Saddam, and we view building basketball courts in Cleveland to be and integral part of that war effort.”

    Kevin M (25bbee)

  10. The GOP Senate voted 90-8 to give Obama $261M more than he asked for.

    DRJ (15874d)

  11. Voting no along with [Sen Mike] Lee were seven other Republicans: Ted Cruz of Texas, Deb Fischer of Nebraska, Jeff Flake of Arizona, Arthur Heller of Nevada, Rand Paul of Kentucky, Ben Sasse of Nebraska, and Jeff Sessions of Alabama.

    DRJ (15874d)

  12. If the House doesn’t have standing, who does? What’s it going to be, a qui tam lawsuit?

    I’d say nobody has standing, because the judicial branch has no authority to intervene in a dispute between its two equal branches. That’s what equal means. When the president oversteps his constitutional bounds, Congress’s only remedy is impeachment and removal. If at least 34 senators are willing to let a president get away with something then he gets away with it, and it’s none of the courts’ business. I think it’s demeaning when the two political branches drag each other to court, as if the judiciary is their superior.

    Milhouse (87c499)

  13. Heard mention of this book on Rush:
    http://www.amazon.com/Confessions-Congressman-X/dp/1634139739

    MD in Philly (f9371b)

  14. If nobody has standing, Milhouse, what you’re saying is that the only war is nuclear war and the only weapon is the nuclear weapon. Congress and the House in particular are supposed to have other weapons to work with, one being the power of the purse. If that can be ignored because no one has judicial standing, then it’s impeachment or rebellion.

    Ingot (e5bf64)

  15. I’d say nobody has standing, because the judicial branch has no authority to intervene in a dispute between its two equal branches. That’s what equal means. When the president oversteps his constitutional bounds, Congress’s only remedy is impeachment and removal. If at least 34 senators are willing to let a president get away with something then he gets away with it, and it’s none of the courts’ business. I think it’s demeaning when the two political branches drag each other to court, as if the judiciary is their superior.

    So you disagree with the Supreme Court decision preventing Obama’s unconstitutional recess appointments?

    What happens when Congress removes the president and he refuses to leave? Because we have accepted preciously that he can ignore Congress and get away with it?

    No, this is a bad view.

    Patterico (46eeea)

  16. Voting no along with [Sen Mike] Lee were seven other Republicans: Ted Cruz of Texas, Deb Fischer of Nebraska, Jeff Flake of Arizona, Arthur Heller of Nevada, Rand Paul of Kentucky, Ben Sasse of Nebraska, and Jeff Sessions of Alabama

    Well, that makes it pretty simple, doesn’t it? It’s nice when you get a clear indication of who is worthless and who is not. Even if the latter category is tiny.

    Patterico (46eeea)

  17. I no longer have any faith whatsoever in the Supreme Court. Even with Scalia, it managed to transform exchanges set by “a State” into those set up by the federal government, thus making BOTH eligible for taxpayer subsidies — entirely at odds with the gleefully-admitted truth told by MACGRUBER! If they can’t read English that clear (… and of course they can, literally; they just want their policy result, law be damned), then it’s already all over.

    Suggestions for places to retire? I’m thinking Australia, higher taxes and all.

    Mitch (341ca0)

  18. So you disagree with the Supreme Court decision preventing Obama’s unconstitutional recess appointments?

    No, I don’t. He had no power to appoint them, so they were usurping their purported offices, and had no authority to do anything. People were free to ignore their decisions, and that’s what the court said. But the dispute wasn’t between congress and the president, it was between these usurpers and the people whom they presumed to have authority over.

    What happens when Congress removes the president and he refuses to leave? Because we have accepted preciously that he can ignore Congress and get away with it?

    What happens if he ignores a court order? How is it any of a court’s business? If congress removes him he is not the president, and that’s all there is to it. The courts have no more role in the matter than you or I do. Getting him out of the White House is the job of the incoming president, and the armed forces he has at his disposal, just as it would be if you or I were to invade the White House and camp out there.

    Milhouse (87c499)

  19. My point is that courts only have jurisdiction to judge their inferiors. Just as the Hawaii Supreme Court can’t interfere in the most blatant injustices perpetrated by the Californian government, and the US Supreme Court can’t sit in judgment on the Mexican government, so also the three branches of the same government can’t tell each other what to do. Just as the president and congress can’t give each other orders, and neither can give the courts orders, so too the courts can’t give either of them orders either.

    Milhouse (87c499)

  20. I’m sure Ezra Klein will be posting a Vox explainer soon about how those silly requirements about funding having to be approved by Congress are old and icky and not at all relevant to the wonderful Obama ruled modern world.

    M. Scott Eiland (3a0fd3)

  21. Send John Marshall an email, Milhouse–I’m sure he could use a chuckle up in the afterlife.

    M. Scott Eiland (3a0fd3)

  22. Marshall did not claim any power of the judiciary to judge the other two branches. Where did you get the idea that he did? All Marshall found was that when a controversy properly finds its way before a court, that court must decide according to the law as it finds it, and that includes the constitution. What the other branches do about it is their business.

    Milhouse (87c499)

  23. I got the idea from reading Marbury v. Madison. Novel idea, I know.

    M. Scott Eiland (3a0fd3)

  24. Excect that Marbury v Madison doesn’t say what you seem to imagine it does.

    Milhouse (87c499)

  25. If the situation was as you describe it, Milhouse, the “political question” doctrine would be redundant–and Truman would have laughed his head off and ignored the Youngstown Sheet and Tube decision (to which I suggest you take a look at–particularly Justice Jackson’s concurrence, as if there was ever a core function of Congress, it would be the power of the purse).

    M. Scott Eiland (3a0fd3)

  26. @SenatorKirk 18 seconds ago

    Over half a mil. immigrants naturalize each year. Congrats to our newest #US Citizens at @stdl today. I’m honored to serve as your Senator.

    happyfeet (a037ad)

  27. “… — then the power of the purse is dead. The President will be able to spend money on anything he likes, and Congress can go hang.”

    Well then, we can disband Congress, fire all the staff, shutter the buildings, and use what little that saves to create the memorial celebrating the reign of Barack the Magnificent!
    The only question left is the rule on succession…..will his chair go to a surviving spouse, or eldest child? But, if he is a secret Muslim, it would have to be a surviving male heir, and he has none. Perhaps he will want to avail himself of that “up to four wives” thing?

    askeptic (02878f)

  28. If the situation was as you describe it, Milhouse, the “political question” doctrine would be redundant

    That’s what the political question doctrine is. The courts have no power to inject themselves into the business of the two political branches.

    and Truman would have laughed his head off and ignored the Youngstown Sheet and Tube decision

    How could he have done that? The property in question belonged to the plaintiffs, and the courts properly found so. Truman tried to steal it, and the court said it still belonged to its owners. The court didn’t order him to do anything or not to do anything.

    Milhouse (87c499)

  29. if there was ever a core function of Congress, it would be the power of the purse

    It certainly is. But it’s none of any court’s business. It’s up to Congress to enforce its privileges.

    Milhouse (87c499)

  30. Wanna bet that if Congress defunded, or specifically refused to fund military actions by a conservative president that the DC Circuit would suddenly discover the principle of ultimate responsibility resting with the Congress?

    So…if the Senate does not affirmatively give “advice,” does that mean a president can seat federal judges? after all, the Senate didn’t say, “No.” did it?

    and on and on…

    Ed from SFV (3400a5)

  31. Congress’s only remedy is impeachment and removal.

    Actually, they could hire an assassin. Since the Courts have no power to judge the actions of co-equal branches, they could do this with impunity, right up to the point where the Presidnet ordered the Marines to arrest Congress.

    OR, MAYBE, THE COURTS MIGHT TAKE CONTROL.

    Kevin M (25bbee)

  32. Johnny Cash sings a transphobic hate crime.

    https://www.youtube.com/watch?v=WOHPuY88Ry4

    Steve57 (eca648)

  33. Sorry. Wrong thread.

    Steve57 (eca648)

  34. What happens if he ignores a court order? How is it any of a court’s business? If congress removes him he is not the president, and that’s all there is to it.

    If funds are not appropriated they are not appropriated, and that’s all there is to it. Unless the president ignores the Constitution.

    Patterico (86c8ed)

  35. National Review:

    Myth 1: The political branches can never sue each other. The federal courts have enforced various subpoenas by a house of Congress against the executive branch, especially when it is clear that the suit is authorized by the entire branch. The famous ruling against President Nixon for the production of his Oval Office tapes was initiated by a grand jury, but the court stated that Congress might also compel a president to produce records in certain circumstances, even if the president has invoked executive privilege. The courts should not get involved in the substance of a policy dispute, but “saying what the law is” sometimes includes enforcing the separation of powers by drawing lines between the branches and declaring that, yes, the president does have the authority to do X or he does not. The interesting question is what kinds of cases the courts will and will not hear, not whether they will hear any at all.

    . . . .

    Myth 3: The House has various political checks it can use against the president, and thus, it is improper to involve the courts in a dispute with the president. The second part just doesn’t follow from the first. Private citizens also have political checks against elected officials, including recall in some situations, mass protests, scathing criticism, and throwing the bums out in the next election, but they can also sue an executive official when they have an injury that a court can redress. Lawsuits are not always the most effective option, but an “all of the above” strategy may be the most prudent course to vindicate vital liberties. And in any event, the courts aren’t open just when the lawsuit is “more effective” than political options. Judges should decide whatever suits they have jurisdiction to hear. Wrongly invoking the “political question” doctrine to decline hearing a case is itself a political act, which the courts must avoid.

    Patterico (86c8ed)

  36. In Milhouse’s world, the president can violate the Constiturion with impunity as long as there are not 67 Senators willing to vote to remove him. So a Democrat in the Oval Office with 34 Senators willing to rubber stamp his actions can appropriate his own money, pass his own laws, declare his own wars, and nobody can say boo.

    Of course most of this is already happening. But surrendering the appropriations power will be another step towards Empire.

    Patterico (3b4a49)


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