The DC Circuit Court stacked by President Barack Obama (D) seems to be iffy on the thing. In an appeal concerning whether the monies the Federal government pays to health care plan providers as subsidies so the plan providers will hold down premiums and deductibles can actually be paid—the funds never were appropriated by Congress, so the payments aren’t legitimate, ruled the trial court—the Circuit Court ruled in part:
The States have shown a substantial risk that an injunction requiring termination of the payments at issue here…would lead directly and imminently to an increase in insurance prices, which in turn will increase the number of uninsured individuals for whom the States will have to provide health care[.]
That may well be true, and if true, it would be unfortunate.
The law is clear: monies not actually appropriated by Congress cannot be spent by the Federal government—the money, in a very real legal sense, does not exist. It’s also illegal to take funds from other, actually extant, appropriations to spend on non-appropriated-for activities.
The decisions whether to appropriate, and then to spend, are solely political decisions, and judges cannot—may not under our Constitution—decide in any way other than what the law actually says; in particular, they don’t get to rule in accordance with what they wish the law to say. Doing the latter is nothing other than judge-made law.
In this case, the appellate court plainly has chosen rule by men—via judge-made law, here—over rule of law.