The House Lawsuit is Essential in Saving Congress' Power of the Purse

Professor Ronald Rotunda has written an outstanding article on the US House’s lawsuit against the President.  Rotunda begins by asking a simple question if this lawsuit is so frivolous as its detractors claim, why are they putting on so much effort into stopping a law firm from representing the House?

More importantly Rotunda details why the lawsuit does have merit by examining one small portion that makes the fundamental point of the lawsuit:  Executive Branch employees are spending money for which no funds have been appropriated.  . 

Congress has appropriated funds for other parts of the ACA. For example, Congress has appropriated funds to pay the “refundable tax credits” that another portion of the law, section 1401, authorizes. However, Congress has not yet appropriated any funds for section 1402. The nonpartisan Congressional Budget Office estimates that the cost of funding section 1402 for the next 10 years (2014 through 2024) will be approximately $178 billion—not an inconsiderable amount.

The Administration has certainly asked Congress to appropriate the money, but the Administration has been unsuccessful. For the 2014 Fiscal Year budget, for example, it asked Congress for $1,420,000,000 ($1.42 billion). As the House of Representatives states in ¶34 of its complaint, “Congress has not appropriated any funds for Section 1402 Offset Program payments to Insurers for Fiscal Years 2014 or 2015.” In the news reports, we constantly hear of proposals to “defund ObamaCare.” Plug that phrase into Google and you get about 280,000 hits. Yet, there is little talk of Congress’s failure to appropriate the new funds that the ACA needs to function.

. . . The House of Representatives lawsuit concludes that Burwell and other executive branch officials are using funds that Congress appropriated for tax refunds under 31 U.S.C. § 1324 to fund programs under section 1402, even though the ACA does not permit that money to be used for funding section 1402 programs. Indeed, 31 U.S.C. § 1324 expressly provides disbursements to implement section 1324 may not be used to fund other programs. In other words, the Executive Branch cannot use section 1324 as an all-purpose piggy bank.

Rotunda’s conclusion should be troubling to all Americans regardless of party. 

I have just discussed one issue in the complaint that is 28 pages long, with over 100 numbered paragraphs encompassing five separate counts. The House of Representatives has made serious allegations that the Executive Branch is spending money that Congress has specifically refused to appropriate. If the Executive Branch can get away with that, we will find that Congress’s power of the purse is about as effective a restraint on Executive Power as handcuffs made of paper. If the Executive Branch can spend money that Congress has refused to authorize, the spending power is like a ratchet: Congress can force the President to spend money (the holding inTrain v. New York) but Congress cannot prevent the President from spending money that Congress never appropriated.

If President Obama can get away with this, the balance of power between the three branches of Government is forever altered.