November 29, 2014
Today’s New York Times explores an interesting and aggressive new suit filed by the U.S. House of representatives challenging the spending power of the President. It poses the question of how broadly the Administration can re-categorize spending to suit its needs, when an express appropriation is not authorized.
The Courts have created difficult standards as to who has standing to challenge actions of government agencies. Many times, it seems, there is a “wrong,” a government action that exceeds any constitutional or statutory authority, but litigants struggle mightily to find a Plaintiff and a cause of action to bring the policy before the Courts. Successively, each claimed Plaintiff, or the timing of the action, is batted down by the Courts applying stringent standards for access to its powers.
Such is the case with House of Representatives v. Burwell, a new action instituted by the House, led by Speaker John Boehner, against the Obama Administration. Here, however, the “wrong” is manifest and the plaintiff seems strongly and uniquely positioned: Spending bills must originate in the House under the U.S. Constitution. If the House fails to appropriate monies for the purpose of the expenditure, the expenditure must be illegal and the House be the perfect — and perhaps only — Plaintiff positioned to challenge the spending.
So, it will take three or more years to work its way through the Courts, but this litigation seems positioned to provide some restraint against the power of the Executive.