Turley: Unconstitutional Obamacare Subsidies Analogous to Trump Acting on Border Wall Without Congress

Friday on Fox News Channel’s “Special Report,” George Washington University law professor Jonathan Turley elaborated on a piece he wrote for The Hill arguing that the continuance of the Obamacare subsidies that President Donald Trump rollback this week would be similar to Trump building the border wall without the authorization of Congress.

Transcript as follows:

BAIER: You are also the lead counsel for the U.S. House of Representatives in the challenge to the actions by the Obama administration to set up these subsidies in a court case that ended in victory.

TURLEY: That’s right.

BAIER: So this is a constitutional move?

TURLEY: It is. The original order that has just been rescinded was unconstitutional by a finding of a federal court. The court found it not only violated Article One of the Constitution, it violated the health care law itself because Congress had the ability to grant subsidies under the federal law, but it chose not to.

In fact, the administration had come to Congress and asked for this money and Congress said no. And then the President said all right, I will just order it directly from the Treasury. Well, you can’t do that.

I mean the defining power of Congress is the power of the purse. And the federal judge issued a historic ruling and said this is wrong. You can’t violate the Constitution no matter what you’re motivations are, no matter what you’re complaining about with Congress. You have to play within the rules of the Constitution.

BAIER: So obviously there’s a lot of pushback to that. Democrats including one who was a part of the leadership during these set up of the law who is now the California attorney general, Xavier Becerra said this today.


XAVIER BECERRA (D), CALIFORNIA ATTORNEY GENERAL: The Trump administration is deciding not to follow the law. Everyone has to follow the law. Every one of us has to pay our bills. Just because Donald Trump is president doesn’t mean he doesn’t have to follow the law. We did not mean to have an executive decide which of the subsidies for Americans would be paid and which wouldn’t.

Donald Trump is deciding which ones he wants to pay and which he doesn’t. He doesn’t get to do that just because he is president.


BAIER: And you are saying Congress doesn’t get to just make things up?

TURLEY: Well, it’s rather bizarre because he’s talking about a law that was — I’m sorry, an order that was found to be unconstitutional. So what President Trump just did is say we are not going to continue to pay subsidies that the federal courts said was unconstitutional.

And so what this does is returns the issue to where it should have remained all along, which is in Congress. You know, we don’t have a lot of options in the democratic process. You can compromise and convince people in Congress or you could try to change Congress.

But you can’t circumvent Congress. You can just order the Treasury to release billions of dollars without an appropriation of Congress.

BAIER: So what are these attorneys general like Becerra and the map includes 18 states and the District of Columbia, what are they — you know, what grounds are they using to sue the administration over this decision to stop subsidies?

TURLEY: I expect they’re going to try to re-litigate what we litigated earlier in the Price case —

BAIER: — which you welcome.

TURLEY: — which, frankly I would welcome because I think it will amplify the victory we had before. But unfortunately, this is a sort of perpetual litigation machine that we’ve seen where every move ends up in court. There is this cathartic reaction to go to court.

I think that what these attorneys have to think about is how bad cases can make bad law for them. And they’ve already lost on this. Now they could keep on returning to the table and putting bets down. But they lost and lost big in the previous litigation.

They are going to be fighting for something that a court found was a violation of the core principles of the United States Constitution.

BAIER: This is the legal side. The politics side — the President says he’s up for renegotiation. Anything could happen with Democrats coming to the table.

You write in this opinion for “The Hill” op-ed, that if Democrats look at it about funding the wall, the President’s border wall, and that they said no to that funding, and then the President said, you know what? I’m directing the Treasury to take the money anyway —

TURLEY: That’s right.

BAIER: — that would be analogous?

TURLEY: It is. I mean the Democrats are now applauding a president who circumvented Congress and just basically ordered the funding of billions of dollars’ worth under this law. What if President Trump took that lesson to heart and just ordered billions to build the wall? You can’t choose but what the difference is — is between governing by principal and governing by personality.

It’s clear that many of these Democrats, you know, like obviously President Obama, do not like President Trump. But if that’s the system that you want, is it a system that will turn on simply who is making the decision rather than whether they have the authority to make it?

Follow Jeff Poor on Twitter @jeff_poor