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The Sausage Factory

People’s House Prevails on Power of the Purse

Rosemary_Mayers_Collyer

U.S. District Court Judge Rosemary M. Collyer

The House of Representatives sued the Executive Branch—Secretary of Health and Human Services Sylvia Burwell and Treasury Secretary Jacob Lew, to be precise—alleging that the Administration has spent money that Congress did not provide to carry out the provisions of the Affordable Care Act (ACA, or Obamacare). The U.S. Constitution permits money to be spent if and only if it is appropriated by a bill passed by Congress. If Congress did not actually provide the money for such payments, the Executive Branch would have misappropriated to itself the Legislative Branch’s rights to appropriate (spend) funds. As a result, the House of Representatives voted to file suit against the Obama Administration to block the funds in question from being spent.

This is the crux of U.S. House of Representatives v. Burwell: When Congress passed Obamacare, did the legislature also actually provide funds to make payments to insurance companies to help keep costs low for consumers? Both the Administration and the House agreed that Congress authorized the government to make payments when it passed Obamacare. But authorizing is only one half of the spending equation. The two branches of government disputed whether Congress actually went a step further and appropriated the funds to do so, and the House maintains that the payments made since January 2014 have been given without its approval. The Court agreed with the House, and in a May 12, 2016, decision issued by U.S. District Judge Rosemary M. Collyer, it defended Congress’ “power of the purse” and its legislative prerogatives more generally.

In addition to the constitutional question of the right to spend, House v. Burwell is noteworthy because of the extent to which it involved what is known as the authorization-appropriation distinction. In essence, Congress, in its law-making process, distinguishes between creating a program and providing funds for it. In the authorization process, a congressional committee will hold hearings and draft or amend a bill to establish policies for a program. In this case, the Congress created—or authorized—the policy that the government could provide funds to insurance companies as a way to compensate them for providing services to certain individuals at a reduced cost. However, Congress treats funding a policy as a different matter from simply creating it. Providing funds—known as appropriating—can be done on a permanent basis or not. If Congress does not provide a permanent appropriation, it must pass new laws providing additional appropriations whenever the existing appropriation expires – usually on September 30, the end of the Federal government’s fiscal year. The authorization-appropriation distinction confuses tons of people, even those who work in and around Congress. One analogy to clarify the difference is that of a water pitcher and water. In the authorization process, Members of Congress build a pitcher, deciding is size, shape, volume and the like. In appropriating, Congress fills it with water. Congress then hands it off to the Executive Branch to pour—but only Congress can provide both the pitcher and the water.

One further complication, begging for reform, is that while the rules of Congress state that if a program is not authorized, Congress cannot appropriate money for it. However, Congress frequently waives that particular rule when passing appropriation bills, which the Constitution says must be passed before monies can be spent. Fully one-third of the $1 trillion discretionary budget Congress appropriates money for is unauthorized. So, practically speaking, authorizations have become optional, but appropriations are required. (Discretionary spending is for various essential and non-essential government activities, like the military, NASA, the National Institutes of Health, or educational programs. Congress provides funds for these programs as needed. Congress is not bound to spend a particular amount based on the law creating the program, as is the case with entitlements. The relevant appropriation bill determines how much money will be spent.)

The second complication is that some appropriations are mandatory – that is, they are outside the regular appropriation process. These are the major entitlement programs such as Social Security and Medicare. Congress authorizes these programs, but a citizen is automatically entitled to them if they meet the conditions in the authorization – such as turning 65 to be eligible for Medicare. As a result the money is automatically appropriated each year without a vote by Congress.

The authorization-appropriation distinction is a principle that guides Representatives and Senators in how they should determine what should be in the country’s laws, so it is an exercise of Congress’ constitutionally granted legislative authority. Whether it is the best way to decide how money is spent is beside the point in this case, because the Constitution leaves it to Congress to legislate, to spend, and to determine its own rules and proceedings (U.S. Constitution, Art I, Sec 5). So even though the distinction seems arcane and at times doesn’t seem to work very well, it is constitutional, and Judge Collyer paid proper heed to Congress’ prerogatives. In this case, she wrote that Congress had established a “permanently authorized benefit program”, which “was made dependent on non-permanent appropriations” (page 31 of Judge Collyer’s decision). Although the Administration argued that such a way of funding was a “dormant…construct”, Judge Collyer wrote, “Nothing prevented Congress from resurrecting this method of appropriating”. It was “a perfectly valid means of appropriation,” she concluded. In her decision, Judge Collyer showed tremendous deference to Congress’ prerogatives under the Constitution to legislate in the way it sees fit, which is an important way that the legislature can restrain the Executive Branch.

In addition to reinforcing Congress’ legislative prerogatives generally, this decision upheld its “power of the purse” specifically. To argue its case, the Administration essentially asserted that two sections of Obamacare, Section 1401 and 1402, are “economically and programmatically integrated” (in the words of the decision) and that the appropriation of funds that was explicit for for Section 1401 covers Section 1402 as well (12). Going through their full argument isn’t really necessary for this post. Relevant here is the fact that, in disagreeing with the Administration, Judge Collyer noted the principle that a law must clearly indicate that Congress appropriated the money, particularly in the case of a permanent appropriation (13). She repeats this principle at various places in the decision. Requiring explicit appropriations of funds is essential to limiting the Executive Branch’s power. Without an explicit appropriation, the President could spend virtually any amount, regardless of whether the object of the spending was fiscally sound or ethical. As James Madison wrote in Federalist 58, the power of the purse “may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance and for carrying into effect every just and salutary measure.” The House v. Burwell decision maintains the integrity of the Congress’ power over the purse.

Congressional Republicans, and conservatives in general, have long warned against what they regard to be the Obama Administration’s questionably lawful and even outright illegal use of Executive authority to achieve its policy goals. The House v. Burwell decision is a victory for them against this current Administration and its policies. However, more importantly, it is a victory for Congress’ constitutional right to make the country’s laws. That issue transcends the Republicans and Democrats’ dispute over healthcare reform. The Framers entrusted legislative authority to Congress to protect citizens against the caprices of a single executive, and the decision strengthens Congress and upholds the Constitution in this regard. That is something everyone—Republican or Democrat—should cheer.

Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.

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