On September 17, Americans will observe the 228th anniversary of the adoption and signing of the U.S. Constitution by the Constitutional Convention. I commend Janine Turner, Cathy Gillespie and everyone associated with Constituting America for their efforts to defend our Constitution and educate people about its foundational significance. Also, I am humbled to accept their gracious invitation to participate as an essayist in this year’s 90 Day Study on executive overreach.
Author James D. Best opened an essay in this series with the following: “Concentrated political power frightened the Founders. They especially feared unrestrained executive power.” This fear of unrestrained power is not something limited to the Founders and accurately describes actions taken by the House of Representatives with regard to ObamaCare.
Since 2011 the House has acted repeatedly to repeal, defund, or otherwise chip away at that law which has driven up health care costs, left millions without coverage, and wreaked havoc on our economy. I would note that some of these actions have actually become law, such as the repeal of onerous small business mandates, the elimination of ObamaCare slush funds, and a prohibition on funds for the law’s insurance “risk corridors.” And a new GOP initiative was just signed into law, the Hire More Heroes Act, which repealed ObamaCare mandates that made it harder for employers to hire our veterans.
However, we’ve still got plenty of work to do. The sheer size of ObamaCare, with its thousands of pages and mountains of attendant regulations, has provided the executive branch ample opportunity to abuse and extend its authority in ways not envisioned by our Constitution. Some of these steps were and are so problematic that a House majority has taken an unprecedented step to stop them – filing a lawsuit against the Obama administration – in addition to our legislative efforts.
On July 30, 2014, the House approved H. Res. 676 authorizing the body to enter into litigation to oppose President Obama’s attempts to become a law unto himself. The President has rewritten many laws, ignoring the will of the American people and the Constitution. Dozens of these actions involve ObamaCare. The House’s unprecedented litigation, the first of its kind in American history, challenges two egregious examples undermining the separation of powers.
The House’s lawsuit against the administration, House v. Burwell (after HHS Secretary Sylvia Burwell), addresses two specific unilateral executive actions on ObamaCare. The first is President Obama’s unilateral decision to twice waive the law’s employer mandate and the penalties for failing to comply with it without going through Congress. The president’s actions delaying the employer mandate directly contradict the clearly written language of the health care law.
The second component of the suit challenges the administration’s unlawful giveaway of approximately $175 billion to insurance companies. According to the Congressional Budget Office (CBO), the administration is scheduled to make payments of $175 billion over the next 10 years to insurance companies under an HHS-based, ObamaCare cost-sharing program. But Congress has refused to fund this cost-sharing program. To circumvent the will of Congress, the administration is instead unlawfully and unconstitutionally using funds from a separate Treasury Department account – authorized for other purposes – to pay insurance companies. These funds were never appropriated, so the administration is using taxpayer funds from a separate account, subverting Congress’s “power of the purse” under Article I, Section 9 of the Constitution. This is clearly unconstitutional.
In March a Federal District Court began proceedings to determine whether the House had legal standing before the court. The House argued in its brief that the administration has “acted without Congress” and has effectively rewritten statutory provisions not to their liking. “Those actions,” we argued “strike at the very heart of the House’s express Article I legislative and ‘guardian of the purse’ powers.” Further, these actions would “enlarge the power of the Executive to dangerous levels… Such a concentration of unchecked power in one branch is precisely what the Framers sought to avoid…”
In late May oral arguments were heard. The House’s lead counsel on the case, constitutional law scholar Jonathan Turley, noted in a blog post at that time that the violations listed in the House litigation “run to the very foundation of the separation of powers doctrine that underpins our entire system of government because they usurp Congress’s powers to appropriate funds and to legislate.”
A ruling on standing is expected in the coming months and I remain hopeful that the court will rule in our favor. While there have been other legal challenges to ObamaCare, this case will test the separation of powers with regard to the law’s implementation. Much is at stake.
The idea of temporal or governmental power having defined limits is a bedrock of Western Civilization and can be traced all the way back to Magna Carta, a document whose 800th anniversary we celebrate this year. Magna Carta, boiled down to its essence, clarified in written word that a monarch had limited power. It was upon the foundation of Magna Carta that our Founders constructed our Constitution. Having thrown off the tyranny of a king, the Founders built a system that placed limits to those elected by the people.
The House will simply not allow these ideas to fall by the wayside. We stand on solid constitutional ground and with the witness of history to the terrible consequences of unchecked power.
We are unwilling to let any president choose what laws to execute and what laws to change. And, we are unwilling to let anyone tear apart what our Founders built.
The Honorable John Boehner represents the 8th Congressional District of Ohio, and is serving in the 114th Congress as the 53rd Speaker of the U.S. House of Representatives.
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