The powers separated from Obama

The Wall Street Journal:

John Boehner isn’t popular with conservatives these days, but the former House Speaker deserves an apology from those who derided his lawsuit challenging President Obama’s usurpation of legislative power. Mr. Boehner went ahead despite skeptics from the left and right, and on Thursday the House won a landmark victory on behalf of Congress’s power of the purse.

Federal Judge Rosemary Collyer handed down summary judgment for the House, ruling that the executive branch had unlawfully spent money on ObamaCare without congressional assent. Judge Collyer noted 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.

“Paying out Section 1402 reimbursements without an appropriation thus violates the Constitution,” Judge Collyer wrote. “Congress authorized reduced cost sharing but did not appropriate monies for it, in the FY 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one”

Judge Collyer takes 38 pages to eviscerate the Administration’s claim that it can infer an appropriation if Congress has merely authorized a program. Congress authorizes all sorts of programs without spending money on them in one year or another. Presidents before Mr. Obama have understood that no money can be spent without an express appropriation.

The ruling is a vindication of the separation of powers under the Constitution, which in Article I gives Congress sole power over spending. This is a crucial check on tyranny. If a President can combine the legislative power to spend with the power to execute the laws, he can ignore Congress and govern by whim.
This is what Mr. Obama has attempted to do in his second term, famously claiming “I’ve got a pen and I’ve got a phone.” He taunted Congress by saying, “so sue me,” and then he called the suit a “stunt.”

Oddly, he was joined in his contempt for Congress by conservatives like radio talker Mark Levin, the self-styled constitutionalist who called the House lawsuit a “very risky and foolish move” that would somehow empower Mr. Obama. Some smarter conservatives warned that a spending fight is political, and not something for the judiciary to settle. In most cases we’d agree. But Mr. Obama’s spending usurpation is so blatant that the House had an obligation to pursue every possible avenue to protect its rights.

The executive branch and state governments routinely sue to vindicate their constitutional powers. Why shouldn’t the House be able to sue to defend its powers against a lawless President? Judge Collyer’s ruling is the third this year to rebuke Mr. Obama’s abuses of power, following the Fifth Circuit Court of Appeals on immigration and the Supreme Court’s stay on his Clean Power Plan.

The Administration will no doubt appeal Judge Collyer’s ruling to the D.C. Circuit Court of Appeals, which Harry Reid and Mr. Obama have packed with liberals precisely to defend his power grabs. The case is ultimately headed for the Supreme Court, where Antonin Scalia’s replacement may be important to the outcome. The stakes of this presidential election keep rising—for the powers of Congress as much as for who will run the executive branch.


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