Turley To Testify In House Hearing On Authorization Of Congressional Lawsuit

260px-capitol_building_full_viewThis morning I will be testifying as the lead witness before the House Rules Committee on the authorization of litigation by the House of Representatives to challenge the unilateral actions of President Obama. The authorization makes it clear that the House will focus on the ACA changes. The hearing will begin at 10 am in H-313 in The Capitol building. It will be aired live on C-Span 3.

I will be the lead witness followed by Elizabeth Price Foley, Professor of Law, Florida International University College of Law, then Simon Lazarus, Senior Counsel, Constitutional Accountability Center, and Walter Dellinger III, Partner, O’Melveny & Meyers LLP.

I would like to thank my incredible GW team for their proofing of the testimony. I have been in federal court and then federal mediation so this testimony was a crash project and, despite my getting the draft out on the day of the deadline, the team did a marvelous job late into the night. So thanks again to Claire Duggan, Michael Jones, Ann Porter, Nathan Richardson, and Conrad Risher.

248px-WhiteHouseSouthFacade.JPGHere is the testimony: Testimony.Turley.HouseRulesCommittee

219 thoughts on “Turley To Testify In House Hearing On Authorization Of Congressional Lawsuit

  1. Thank you Professor Turley for your continued patriotic efforts in protecting our Constitution!

  2. http://www.politico.com/story/2014/07/boehner-lawsuit-walter-dellinger-witness-108808.html

    House Democrats are tapping a former assistant attorney general and a top Carter administration official to serve as witnesses against a Republican plan to sue President Barack Obama.

    One of the witnesses is Walter Dellinger, a former assistant attorney general, head of the Office of Legal Counsel and acting Solicitor General. Simon Lazarus, an associate director for President Jimmy Carter, will also testify at a House Rules Committee hearing next week on a resolution to sue Obama for alleged overreach of executive powers.

    “Mr. Dellinger and Mr. Lazarus are two of the premier constitutional scholars in the United States today and they will be making a forceful legal argument for why the House’s lawsuit is without merit,” said New York Rep. Louise Slaughter, the top Democrat on the House Rules Committee.

    Speaker John Boehner announced on Thursday that a lawsuit against Obama would focus on executive orders delaying the employer mandate provision in Obamacare.

    The Republican witnesses are Jonathan Turley, a noted constitutional scholar with the George Washington Law School and Florida International University law professor Elizabeth Price Foley.

  3. http://www.politico.com/story/2014/07/house-republicans-obamacare-lawsuit-108957.html?hp=l1 “The decision to focus on Obamacare was surprising to some who expected a more sweeping legal action. But Republicans leading the effort say the health care overhaul is the best case they can bring to a judge.

    “We’re not trying to take every issue that we disagree with the president on,” said House Rules Committee Chairman Pete Sessions, who will lead the Wednesday hearing. “We’re going to pick that one that we believe has a lot of merit and widely recognized as an important issue.”

    Proving that Obama misused his executive power is a long shot, most Republicans privately concede. Some even say that it is simply a way to quiet down the growing number of fringe Republicans who have said the party should move to impeach the president.

  4. “It is akin to a group of the best doctors in the world standing around and screaming at an anemic patient to “heal yourself.””

    Ha. Very nice analogy. Good luck on capital hill today.

  5. http://www.huffingtonpost.com/2014/07/14/john-boehner-lawsuit_n_5586395.html “WASHINGTON –” A majority of Americans think House Speaker John Boehner’s lawsuit against President Barack Obama is a pointless waste of resources, according to a new poll.

    Boehner (R-Ohio) is pursuing a lawsuit against Obama, saying the president used executive power to delay provisions in the Affordable Care Act that should have required congressional approval. While the speaker’s proposed lawsuit has the backing of some Republicans in Congress, 51 percent of American voters view it as a “political stunt,” according to Public Policy Polling. Only 41 percent of voters consider the lawsuit to be legitimate.’

  6. This is funny is a sad way. First off the GOP folks were crying that some of the provisions were going to hurt businesses, so Obama obliges them and delays the implementation of them. Of course, the GOP would do anything rather than actually make beneficial changes in the law. So since Obama knows he could not get the House to agree to any changes, uses his inherent authority to postpone some provisions that need tweaking. Now the GOP is suing Obama for doing what they wanted. The American people are right, This is nothing but political games and is simply a case when the GOP and its acolytes say that he is damned if he does and damned if he does not. GET REAL!

  7. http://www.vox.com/2014/7/11/5890633/boehner-is-suing-obama-so-he-doesn-t-have-to-impeach-him “Consider what happens if Speaker John Boehner wins his lawsuit against President Barack Obama: the court will order Obama to implement the Affordable Care Act’s employer mandate without further delay. Which, given that Obama only delayed the mandate until 2015 and court cases can take a long time to wind their way through the legal system, might mean the court will order Obama to do something he has already done.

    What’s even odder about the suit is that Boehner hates Obamacare’s employer mandate. And the business groups that back Boehner hate Obamacare’s employer mandate. So Boehner is lifting heaven and earth to get the court to demand Obama more rapidly enforce a policy Boehner hates, that Boehner’s allies hate, and that Obama says he’s going to start enforcing in a few months anyway.

    It’s as if Pat Riley was suing LeBron James to force him to begin playing for the Cleveland Cavaliers sooner.”

  8. A good read, and good luck. It is a shame that this issue does not have the attention of the masses. More attention will be devoted to LeBron James’ return to Cleveland this week. The media will focus more on the political motivations behind Boehner’s suit than the genuine constitutional crisis at hand. And Congress will wring their hands, whine a little, and do nothing. Our Constitution is wasted on us. Maybe all we deserve is a corporate police state.

  9. Political games, Americans agree by 51%. I wonder what those fat PUMA ladies would do if their precious Hillary Clinton was being sued by Republicans whose only job was to obstruct her. I wonder why the love for Hillary, when she was for the public mandate when Obama was against it. What hypocrisy.

  10. randyjet:

    ” Now the GOP is suing Obama for doing what they wanted. The American people are right, This is nothing but political games and is simply a case when the GOP and its acolytes say that he is damned if he does and damned if he does not.”

    *******************

    You got it my friend. This House of Reps has no intention to do any governing. Their sole reason for being is to discredit this Presidency and his policies they despise. First, they demand a delay in mandates and then, when pushed by their own constituency, refuse to consider the matter forcing the President to act. It’s a game and now the gambit is to bring in principled people like Professor Turley to provide some cogent basis for the political gamesmanship this most certainly has become.

    Boehner knows that this suit will likely never be settled before Obama leaves office and even if it does it will be moot by Jan. 1, 2015.. So to that extent it’s a political stunt.

    While the issues of separation of powers are legitimate, focusing on that hides the reality of the political war going on between the President who wants to do something and the House that does not. The only causalities here are the American people and especially those who can defend themselves the least.

    And those Americans are what I think the focus should be in this debate not some political science class about the extent of erosion of the separation of powers. It’s a lot of sound and fury in service to the wrong ends. Constitutional theory is fine and the current structure surely could use some tweaking but that discussion should take a back seat when we’re addressing the problem of people dying because they can’t afford healthcare.

    I admire JT for his principles but I think it’s in service to the wrong people — people who would bring the government crashing down and sacrifice their fellow citizens just so they could claim a temporary and ultimately Pyrrhic victory over their opponent.

    A pox on their House and their lawsuit.

  11. Mespo, it’s been the goal of the GOP to make this President powerless by scurrilous attacks and obstruction. I think one day in history lessons, our grandchildren will learn to what lengths the GOP went to bring his President down, it will be seen as shameful period in American history.

  12. randy:

    The point is, Obama didn’t have inherently authority.
    Your argument is completely backwards – it is Obama who campaigned hard for this law, Republicans never wanted it in the first place.
    Now that it is collapsing under its own top-heavy instabilities, he is coming in with chewing gum and chicken wire to prop it up anyway he can.
    When the USSC rules that some States’ residents do not have to pay, the whole thing will fold in on itself anyway.
    It was an ill conceived, magical thinking based thing in the first place. That it won on purely partisan lines destined it to alway be in a tug of war.
    It was wishful thinking believing it just be so, all they had to do was enact it into law, then we would know what was in there, and everything would just fall into place.

  13. Good luck, but doing anything with this majority in the House smacks of politics. They have no real concern for the Constitution, only power and more money for the corporations and wealthy.

  14. Gary T:

    “It was an ill conceived, magical thinking based thing in the first place. ”

    ********************

    All it does is work — and save thousands of lives per year. Damn magical thinking!

  15. “I admire JT for his principles but I think it’s in service to the wrong people — people who would bring the government crashing down and sacrifice their fellow citizens just so they could claim a temporary and ultimately Pyrrhic victory over their opponent.” mespo Yes… I won’t be watching that not very intelligent tea partyer Pete Sessions chair the hearing. He is my former congressman. My daughter once asked him a question about stem cell research, and although he seemed to know very little about the science involved he knew he was against it.

  16. Of what do the final words of the Testimony portend?

    Those words are:
    “It is tempting to embrace rule by a single person who offers to govern alone to get things done. However, this is the very Siren’s call that our Founders warned us to resist. We remain a nation of laws and we have a court system designed to resolve such controversies. That is precisely where this authorization would take us and it is where these questions should be answered.”

    I find those words to be profoundly profound…

    If, as stated above, we have a court system designed to resolve such controversies, why have such controversies not been resolved long ago?

    An existential philosophy question has embraced my attention, as I am writing this.

    By what authority is it decided what authority decides what to decide and how to decide it?

    Authority by social consensus? Methinks terrible danger lurks that way.

    My authority for so methinking? Richard Rashke, Escape from Sobibor: The Heroic Story of the Jews Who Escaped from a Nazi Death Camp, Houghton Mifflin Co., 1982.

    It was a form of social consensus authority that led to the buliding of the death camp at Sobibor. It was a somewhat contrasting form of social consensus authority which enabled the escape, to the extent that the escape was actually enabled.

    Obedience to Authority is the title of a book, first published in 1963, by the late Stanley Milgram,

    In the work of carrying out his duties as President of the United States of America, by what method is President Obama to find his proper authority to properly carry out his obligations of office?

    In the work of carrying out their duties as Members of Congress, by what method are the Members of Congress, both individually and as a group, to find their proper authority to properly carry out their obligations of office?

    In the work of carrying out their duties as Members of the Judiciary, by what method are the Members of the Judiciary to find their proper authority to properly carry out their obligations of office?

    If the obligations of office of the President are in adversarial conflict with the obligations of the office of Members of Congress, which are in adversarial conflict with the obligations of office of the Judiciary, which are in adversarial conflict with the obligations of the office of the President; by what authority may the adversarial relationships of our government offices be resolved?

    The President cannot resolve the adversarial relationships without forsaking the adversarial rule of law. The Congress cannot resolve the adversarial relationships without forsaking the adversarial rule of law. The Judiciary cannot resolve the adversarial relationships without forsaking the adversarial rule of law.

    Where is to be found, and by whom, a constitutional method for forsaking the adversarial rule of law, if it is the adversarial rule of law which is the only actual adversary the President, the Congress, the Judiciary, and the Public, can ever have?

    I have read, read again, and intensively studied The Constitution of the United States of America. Nowhere in the Constitution have I come upon any mention of any Bar Association, nor of any right of any Bar Association as a private group, or as a cartel, to delimit who can engage in the practice of law, even if merely as a gaggle of marginally uninformed or informed members of the Public.

    Perhaps I commit utter treason in being alive, yet I find that the only actually-valid authority for the rule of law which I have ever found, heard of, or been able to imagine, is only within individual human persons who are acting in accord with rigorously truthful honesty,individually, in accord with an uncorrupted conscience.

  17. Gary T:

    “Wishful thinking never supercedes economic law.”

    ***********************

    Sure it does. It explains the fat cats on Wall Street still getting paid after about ruining the country. The suckers just keep coming though economic “law” says they should flee in droves.

    Wishful thinking is what drives most institutions and props them up. As Glenn Fry says, “It’s the lure of easy money. It has a very strong appeal.”

  18. Brian Harris:

    ““It is tempting to embrace rule by a single person who offers to govern alone to get things done. However, this is the very Siren’s call that our Founders warned us to resist. We remain a nation of laws and we have a court system designed to resolve such controversies. That is precisely where this authorization would take us and it is where these questions should be answered.”

    **********************

    The weak spot in the argument offered by Professor Turley is what you’ve put your finger on. What the pure constitutionalists can’t answer is what do you do in a crisis when the system isn’t working. Take the immigration crisis or the problem of healthcare where folks are dying as examples.

    When we had the exact same problem under the Articles of Confederation system we junked it under the guise of “reforming” it. That was clearly antithetical to the law of the Articles but necessary to keep the nation intact. We could have followed the law and watched the erosion happen but we realized that the necessity of self-preservation is the ultimate law.

    You can decry necessity all you want to but American history shows it to be the most reliable motivator — and one whose excesses are readily excused by the grateful populace. To do otherwise in the face of real danger, insures we have a constitutional suicide pact.

  19. Annie, “I think one day in history lessons, our grandchildren will learn to what lengths the GOP went to bring his President down, it will be seen as shameful period in American history.”

    It depends on who writes the history book. A lot of shameful behavior by the powerful has gone down the memory hole, only occasionally brought to light to a few. In the meantime, many of the transgressors are treated as heroes.

  20. bettykath:

    “t depends on who writes the history book. A lot of shameful behavior by the powerful has gone down the memory hole, only occasionally brought to light to a few. In the meantime, many of the transgressors are treated as heroes.”
    **************************
    I think the most dangerous person in any government is the one who says, “We must change.” Dangerous to the entrenched interests, that is.People remember them however.

  21. A little food for thought:

    Jim Garrison, in 1967:

    quote”1967 interview of Jim Garrison, District Attorney of New Orleans, who tried to prosecute one of the conspirators in the coup d’etat of November 22, 1963:

    PLAYBOY: Many of the professional critics of the Warren Commission appear to be prompted by political motives: Those on the left are anxious to prove Kennedy was murdered by a conspiracy within the establishment; and those on the right are eager to prove the assassination was an act of “the international Communist conspiracy.” Where would you place yourself on the political spectrum — right, left of center?

    GARRISON: That’s a question I’ve asked myself frequently, especially since this investigation started and I found myself in an incongruous and disillusioning battle with agencies of my own Government. I can’t just sit down and add up my political beliefs like a mathematical sum, but I think, in balance, I’d turn up somewhere around the middle. Over the years, I guess I’ve developed a somewhat conservative attitude — in the traditional libertarian sense of conservatism, as opposed to the thumbscrew-and-rack conservatism of the paramilitary right — particularly in regard to the importance of the individual as opposed to the state and the individual’s own responsibilities to humanity. I don’t think I’ve ever tried to formulate this into a coherent political philosophy, but at the root of my concern is the conviction that a human being is not a digit; he’s not a digit in regard to the state and he’s not a digit in the sense that he can ignore his fellow men and his obligations to society. I was with the artillery supporting the division that took Dachau; I arrived there the day after it was taken, when bulldozers were making pyramids of human bodies outside the camp. What I saw there has haunted me ever since. Because the law is my profession, I’ve always wondered about the judges throughout Germany who sentenced men to jail for picking pockets at a time when their own government was jerking gold from the teeth of men murdered in gas chambers. I’m concerned about all of this because it isn’t a German phenomenon; it’s a human phenomenon. It can happen here, because there has been no change and there has been no progress and there has been no increase of understanding on the part of men for their fellow man. What worries me deeply, and I have seen it exemplified in this case, is that we in America are in great danger of slowly evolving into a proto-fascist state. It will be a different kind of fascist state from the one of the Germans evolved; theirs grew out of depression and promised bread and work, while ours, curiously enough, seems to be emerging from prosperity. But in the final analysis, it’s based on power and on the inability to put human goals and human conscience above the dictates of the state. Its origins can be traced in the tremendous war machine we’ve built since 1945, the “military-industrial complex” that Eisenhower vainly warned us about, which now dominates every aspect of our life. The power of the states and Congress has gradually been abandoned to the Executive Department, because of war conditions; and we’ve seen the creation of an arrogant, swollen bureaucratic complex totally unfettered by the checks and balances of the Constitution. In a very real and terrifying sense, our Government is the CIA and the Pentagon, with Congress reduced to a debating society. Of course, you can’t spot this trend to fascism by casually looking around. You can’t look for such familiar signs as the swastika, because they won’t be there. We won’t build Dachaus and Auschwitzes; the clever manipulation of the mass media is creating a concentration camp of the mind that promises to be far more effective in keeping the populace in line. We’re not going to wake up one morning and suddenly find ourselves in gray uniforms goose-stepping off to work. But this isn’t the test. The test is: What happens to the individual who dissents? In Nazi Germany, he was physically destroyed; here, the process is more subtle, but the end results can be the same. I’ve learned enough about the machinations of the CIA in the past year to know that this is no longer the dreamworld America I once believed in. The imperatives of the population explosion, which almost inevitably will lessen our belief in the sanctity of the individual human life, combined with the awesome power of the CIA and the defense establishment, seem destined to seal the fate of the America I knew as a child and bring us into a new Orwellian world where the citizen exists for the state and where raw power justifies any and every immoral act. I’ve always had a kind of knee-jerk trust in my Government’s basic integrity, whatever political blunders it may make. But I’ve come to realize that in Washington, deceiving and manipulating the public are viewed by some as the natural prerogatives of office. Huey Long once said, “Fascism will come to America in the name of anti-fascism.” I’m afraid, based on my own experience, that fascism will come to America in the name of national security.”unquote

  22. Squeeky:

    “total pos Obama and his crowd were.”

    *********************

    Man from humble beginnings rises to become US Senator and then the first African-American president of the most powerful country on earth. He does so in a landslide against economically entrenched interests and a war hero who is also a US Senator.

    Yep, total pos.

    Now, Squeeky, tell us all about you.

  23. “I’m afraid, based on my own experience, that fascism will come to America in the name of national security.”unquote” anon It very well could, but Boehner’s lawsuit has nothing to do with national security. It is limited to certain mandates of the affordable care act.

  24. Considering that Obama has used executive orders far fewer times than his predecessors, I see this as political theater and JT is on the wrong side of this.

  25. @messpoo

    Man from humble position falls in with Chicago political machine and rises to Senator then President possessing no discernible job skills and no record beyond speechmaking, which speeches have squat to do with his conduct.

    There! Fixed it for you!

    Squeeky Fromm
    Girl Reporter

  26. J.T.’s testimony was an excellent summation of his posts here.

    But Elizabeth Price Foley’s testimony was laser like in its focus on the standing issue.

    Superb.

  27. I am impressed with the crystal-clear logic of Jonathan Turley’s statements this morning concerning the “fourth branch of government,” and the seriousness of the actual uneven distribution of power as has been perverted by the current administration. I am also amused while being astounded by the superficial, spurious and weak testimony presented by those on the panel in opposition to professor Turley’s position.

  28. The President is sort of stepping up to the plate but many of us think not early and often enough. In the words of Randy Newman in Good Ol Boys, Rednecks song, “the House could fall down, the baby could drown and not one of those people woulld care.” Advise the House, if you will, or perhaps George Will, will do it, to get off their duffs, stop having long vacations to round up money from the Koch Brothers and pay attention to the nation’s needs. The ACA is the least of their worries because they have socialized medical care for life for merely being in Congress. Ask Congress to extend to all citizens the level of medical care which they have legislated for themselves. For the likes of Eric Cantor (I know he is lame duck) say: “I’m a cracker, you’re one too, gonna take good care of you.” When Cantor is not speaking on tv or to the home folks he dont talk like no Southerner. Listen to him yakking at the Marriott Bar with those gals from C Street. Or is it K Street? I keep confusing the female hookers from the Koch Brother monetary supply hookers and where they hang their respective shingles in DC.

  29. http://www.politico.com/story/2014/07/john-boehner-obama-lawsuit-debate-merits-108979.html?hp=l1 ““These claims fault the Obama Administration for making necessary adjustments in timing and matching enforcement priorities with resources and technical, practical, humanitarian, and other exigencies,” said Lazarus. “But exercising presidential judgment in carrying laws into execution is precisely what the Constitution requires.”

    Walter Dellinger, an acting solicitor general under then-President Bill Clinton, made a case that the 113th Congress did not have standing to bring the suit because Obamacare was passed by the 111th Congress.

    The debate often turned technical with the four witnesses citing the interpretation of the Founding Fathers and case law to debate if the House was injured by Obamacare’s delays.

    The Rules Committee is expected to mark up a resolution next week authorizing the House to sue Obama. That measure could make it to the House floor by the end of July.

    When the lawsuit heads to a federal court, the first test of its merits will be if a judge rules the House has standing to bring the suit forward. If the lawsuit is sustained, the court will then hear the case. If a judge does not feel House Republican lawyers made an adequate case for standing, it will be thrown out.”

  30. Really, it is not question of lawsuit. I have always questioned the standing of both plaintiff and defendant in this idea of a civil action.

    What they want to do is properly an impeachment.
    I believe they will have all the powers that a court would have in that process.

  31. These are the judicial vacancies which Congress is too busy to consider:

    Judicial Vacancies

    First Circuit
    ◾ District of Massachusetts •1 vacancy
    • Vacant since: 04/01/2014
    •No nominee

    Second Circuit
    ◾ District of Connecticut •1 vacancy
    • Vacant since: 07/01/2014
    • 1 nominee
    • Victor Allen Bolden , nominated 06/13/2014 for seat vacated 07/01/2014 • Announcement

    ◾ Eastern District of New York •1 current vacancy
    • Vacant since: 01/13/2014
    • 1 future vacancy
    • To be vacated: 05/01/2015
    • 1 judical emergency
    •No nominee

    ◾ Northern District of New York •1 vacancy
    • Vacant since: 06/30/2013
    • 1 nominee
    • Brenda K. Sannes , nominated 05/08/2014 for seat vacated 06/30/2013 • Announcement

    ◾ Western District of New York • 1 future vacancy
    • To be vacated: 03/08/2015
    •No nominee

    Third Circuit
    ◾ Court of Appeals •1 vacancy
    • Vacant since: 07/01/2013
    •No nominee

    ◾ District of New Jersey •1 current vacancy
    • Vacant since: 01/31/2014
    • 3 future vacancies
    • To be vacated: 03/06/2015, 02/16/2015, 06/15/2015
    • 1 nominee
    • Madeline Cox Arleo , nominated 06/26/2014 for seat vacated 01/31/2014 • Announcement

    ◾ Eastern District of Pennsylvania •5 vacancies
    • Vacant since: 07/13/12, 11/18/2013, 05/01/2013, 09/01/2013, 10/31/2013
    • 4 nominees
    • Wendy Beetlestone , nominated 06/13/2014 for seat vacated 07/13/2012 • Announcement

    • Gerald J. Pappert , nominated 06/13/2014 for seat vacated 10/31/2013 • Announcement

    • Joseph F. Leeson, Jr. , nominated 06/13/2014 for seat vacated 09/01/2013 • Announcement

    • Mark A. Kearney , nominated 06/13/2014 for seat vacated 05/01/2013 • Announcement

    ◾ Western District of Pennsylvania •3 vacancies
    • Vacant since: 04/24/2013, 09/30/2013, 08/16/2013
    •No nominee

    Fourth Circuit
    ◾ Court of Appeals •1 vacancy
    • Vacant since: 02/28/2014
    • 1 nominee
    • Pamela Harris , nominated 05/08/2014 for seat vacated 02/28/2014 • Announcement

    ◾ District of Maryland • 1 future vacancy
    • To be vacated: 10/03/2014
    •No nominee

    ◾ Eastern District of North Carolina •1 vacancy
    • Vacant since: 12/31/05
    • 1 judical emergency
    • 1 nominee
    • Jennifer Prescod May-Parker , nominated 06/20/2013 for seat vacated 12/31/2005 • Questionnaire
    • Announcement

    ◾ Middle District of North Carolina •1 vacancy
    • Vacant since: 06/30/2014
    •No nominee

    ◾ District of South Carolina •1 current vacancy
    • Vacant since: 10/03/13
    • 1 future vacancy
    • To be vacated: 11/16/2014
    • 1 nominee
    • Alison Renee Lee , nominated 06/26/2013 for seat vacated 10/03/13 • Questionnaire
    • Announcement

    ◾ Western District of Virginia • 1 future vacancy
    • To be vacated: 08/01/2014
    •No nominee

    Fifth Circuit
    ◾ Court of Appeals •2 vacancies
    • Vacant since: 08/01/12, 12/31/2013
    • 2 judicial emergencies
    •No nominee

    ◾ Middle District of Louisiana •1 vacancy
    • Vacant since: 12/31/2013
    • 1 nominee
    • John D. deGravelles , nominated 03/13/2014 for seat vacated 12/31/2013 • Hearing Date: 05/20/2014
    • Questionnaire
    • Reported by Committee: 06/19/2014

    ◾ Western District of Louisiana • 1 future vacancy
    • To be vacated: 3/6/2015
    •No nominee

    ◾ Eastern District of Texas •2 current vacancies
    • Vacant since: 10/1/11, 3/17/12
    • 2 future vacancies
    • To be vacated: 03/15/2015, 05/15/2015
    • 2 judicial emergencies
    • 2 nominees
    • Robert William Schroeder, III , nominated 06/26/2014 • Announcement

    • Amos L. Mazzant, III , nominated 06/26/2014 • Announcement

    ◾ Northern District of Texas •1 current vacancy
    • Vacant since: 07/03/2013
    • 1 future vacancy
    • To be vacated: 01/15/2015
    •No nominee

    ◾ Southern District of Texas •5 vacancies
    • Vacant since: 06/01/11, 12/31/12, 03/02/13, 6/20/2014, 05/20/2014
    • 1 judical emergency
    •No nominee

    ◾ Western District of Texas •1 current vacancy
    • Vacant since: 11/30/08
    • 1 future vacancy
    • To be vacated: 02/13/2015
    • 1 judical emergency
    • 1 nominee
    • Robert Lee Pitman , nominated 06/26/2014 for seat vacated 11/30/2008 • Announcement

    Sixth Circuit
    ◾ Court of Appeals •1 vacancy
    • Vacant since: 08/16/2013
    •No nominee

    ◾ Eastern District of Kentucky •1 vacancy
    • Vacant since: 01/08/13
    •No nominee

    ◾ Western District of Kentucky •3 vacancies
    • Vacant since: 11/15/11, 02/01/2013, 04/01/2014
    • 3 judicial emergencies
    • 2 nominees
    • Greg N. Stivers , nominated 06/19/2014 for seat vacated 11/15/2011 • Announcement

    • David J. Hale , nominated 06/19/2014 for seat vacated 02/01/2013 • Announcement

    ◾ Eastern District of Tennessee • 1 future vacancy
    • To be vacated: 10/31/2014
    •No nominee

    ◾ Middle District of Tennessee • 1 future vacancy
    • To be vacated: 12/01/2014
    •No nominee

    Seventh Circuit
    ◾ Court of Appeals •1 current vacancy
    • Vacant since: 1/7/10
    • 1 future vacancy
    • To be vacated: 02/18/2015
    •No nominee

    ◾ Northern District of Illinois •1 current vacancy
    • Vacant since: 12/31/2013
    • 1 future vacancy
    • To be vacated: 11/16/2014
    •No nominee

    ◾ Southern District of Indiana •1 vacancy
    • Vacant since: 06/30/2014
    • 1 judical emergency
    •No nominee

    ◾ Eastern District of Wisconsin •1 vacancy
    • Vacant since: 10/31/12
    • 1 nominee
    • Pamela Pepper (Clevert Vacancy) , nominated 05/01/2014 for seat vacated 10/31/2012

    Eighth Circuit
    ◾ Northern District of Iowa • 1 future vacancy
    • To be vacated: 06/04/2015
    •No nominee

    ◾ Southern District of Iowa • 1 future vacancy
    • To be vacated: 03/01/2015
    •No nominee

    ◾ Eastern District of Missouri •1 vacancy
    • Vacant since: 07/01/2013
    • 1 nominee
    • Ronnie L. White , nominated 11/07/2013 for seat vacated 7/01/2013 • Hearing Date: 05/20/2014
    • Questionnaire
    • Announcement
    • Reported by Committee: 06/19/2014

    ◾ Western District of Missouri •1 vacancy
    • Vacant since: 01/03/2014
    • 1 nominee
    • Stephen R. Bough , nominated 01/16/2014 for seat vacated 01/03/2014 • Announcement

    ◾ District of Nebraska • 1 future vacancy
    • To be vacated: 10/03/2014
    •No nominee

    Ninth Circuit
    ◾ Central District of California •1 vacancy
    • Vacant since: 03/13/2014
    • 1 judical emergency
    • 1 nominee
    • André Birotte, Jr. , nominated 04/03/2014 for seat vacated 03/13/2014 • Hearing Date: 05/20/2014
    • Questionnaire
    • Reported by Committee: 06/19/2014

    ◾ Eastern District of California •1 vacancy
    • Vacant since: 10/31/2012
    • 1 judical emergency
    •No nominee

    ◾ Northern District of California • 1 future vacancy
    • To be vacated: 12/31/2014
    •No nominee

    Tenth Circuit
    ◾ District of Kansas •1 vacancy
    • Vacant since: 04/22/2014
    •No nominee

    ◾ Western District of Oklahoma •1 current vacancy
    • Vacant since: 07/07/2013
    • 1 future vacancy
    • To be vacated: 12/01/2014
    •No nominee

    ◾ District of Utah •1 current vacancy
    • Vacant since: 01/01/2014
    • 1 future vacancy
    • To be vacated: 09/01/2014
    •No nominee

    Eleventh Circuit
    ◾ Court of Appeals •3 vacancies
    • Vacant since: 8/29/10, 07/15/12, 10/25/2013
    • 3 judicial emergencies
    • 2 nominees
    • Julie E. Carnes , nominated 12/19/2013 for seat vacated 07/15/2012 • Hearing Date: 05/13/2014
    • Questionnaire
    • Announcement
    • Reported by Committee: 06/19/2014

    • Jill A. Pryor , nominated 02/16/12 for seat vacated 08/29/10 • Hearing Date: 05/13/2014
    • Questionnaire
    • Announcement
    • Reported by Committee: 6/19/2014

    ◾ Middle District of Alabama •1 vacancy
    • Vacant since: 08/22/2013
    •No nominee

    ◾ Northern District of Alabama •1 vacancy
    • Vacant since: 08/31/2013
    •No nominee

    ◾ Southern District of Florida •2 vacancies
    • Vacant since: 02/15/2012, 05/12/2014
    • 2 judicial emergencies
    • 1 nominee
    • Robin L. Rosenberg , nominated 02/26/2014 for seat vacated 02/15/2012 • Hearing Date: 05/20/2014
    • Questionnaire
    • Reported by Committee: 06/19/2014

    ◾ Middle District of Georgia •1 vacancy
    • Vacant since: 04/12/2014
    • 1 nominee
    • Leslie Joyce Abrams , nominated 03/11/2014 for seat vacated 04/12/2014 • Hearing Date: 05/13/2014
    • Questionnaire
    • Announcement
    • Reported by Committee: 06/19/2014

    ◾ Northern District of Georgia •3 current vacancies
    • Vacant since: 1/20/10, 2/9/09, 01/31/13
    • 1 future vacancy
    • To be vacated: TBD pending elevation of Judge Carnes to 11th Cir.
    • 2 judicial emergencies
    • 4 nominees
    • Eleanor Louise Ross , nominated 12/19/2013 for seat vacated 01/31/2013 • Hearing Date: 05/13/2014
    • Questionnaire
    • Announcement
    • Reported by Committee: 06/19/2014

    • Leigh Martin May , nominated 12/19/2013 for seat vacated 01/20/2010 • Hearing Date: 05/13/2014
    • Questionnaire
    • Announcement
    • Reported by Committee: 06/19/2014

    • Mark Howard Cohen , nominated 12/19/2013 for seat vacated 02/09/2009 • Hearing Date: 05/13/2014
    • Questionnaire
    • Announcement
    • Reported by Committee: 06/19/2014

    • Michael P. Boggs , nominated 12/19/2013 for seat vacated * Nominated to fill seat vacated by Judge Julie E. Carnes if elevated to the 11th Circuit. • Hearing Date: 05/13/2014
    • Questionnaire
    • Announcement

    Federal Circuit
    ◾ Court of Appeals •1 vacancy
    • Vacant since: 06/30/2014
    •No nominee

    Circuit of the District of Columbia
    ◾ District of District of Columbia •2 vacancies
    • Vacant since: 01/14/2014, 06/03/2014
    • 1 nominee
    • Randolph D. Moss , nominated 04/03/2014 for seat vacated 01/14/2014 • Hearing Date: 05/20/2014
    • Questionnaire
    • Reported by Committee: 06/19/2014

    Court of International Trade
    ◾ •1 vacancy
    • Vacant since: 07/01/2014
    •No nominee

  32. Isn’t impeachment the procedure for the Speaker?

    This law suit makes Boehner look almost as feckless as the ineligible “president,” the illegitimate* son of a foreign citizen who was cleaned, polished, produced and foisted on the public by his puppet masters – an empty suit, lost in a “Purple Haze” of self-contradictory collectivist mysticism.

    Does anyone see a “sleeping giant” out there; any objective rationality on the horizon?

    Pity America.

    *******************************************************************************************

    Can anyone confirm the legality of the following paragraph:

    * When is a child born out of wedlock and when is a child legitimate?

    A child is “born out of wedlock” if the child’s parents 1) were not married when the child was conceived, 2) were not married when the child was born, and 3) have not married since the child was born. A child is automatically considered legitimate if the child was born when the parents were married. If a child was conceived during the parents’ marriage and they divorced before the child was born, that child is still considered legitimate. If parents marry after a child is born, that child is considered legitimate.

  33. This discussion thread reminds me of the thematic conflict in Atlas Shrugged (haven’t read the book by Rand but watched parts 1 and 2 of the recent movie version).

  34. jonathanturley also reminds me of the commencement speaker at my law school graduation who counseled us to always keep in mind that we were a secular priesthood of sorts on whom depended the integrity of the law in principle, distinct from partisanship and the politics, for our society.

  35. Is JT sayin’ that the courts should be the decider?

    The courts, to his wry chagrin, have been saying “you two or three (Senate, House, Preznit) work it out.”

    The nomenclature for it is “non-justiciable” I hear tell.

    Does JT want to limit it to one department to solve the proble of one department?

    Is this a Neo thingy (“he’s the One”)?

    IOW is the one judicial department a solution to the problem of one department being the decider?

    Just sayin’ …

  36. I’m no fan of restrictive standing as I’ve said many times. I hope the case is heard on the merits. I think we’ll see the SCOTUS afford the President considerable leeway in how the ACA is implemented. If not they will hinder Republican presidents as well assuming one of them ever wants to do something.

  37. Squeeky Fromm, Girl Reporter

    Beware the decompensating narcissists suffering low self-esteem that loiter on this site, craving the opportunity to go ad hominem. Factuality, rationality and objectivity are not prerequisite herein.

    Universal salvation through proper indoctrination is the unassailable rationale for declaring endeavor, sacrifice and success evil, and imposing punitive taxation to accomplish it.

    Pity America.

  38. “a secular priesthood of sorts on whom depended the integrity of the law in principle, distinct from partisanship and the politics, for our society.”

    Preamble

    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

    I wonder if we were told precisely what actions were taken by the Founders through the use of specific verbs or action words limiting government to security and infrastructure while securing the “blessings of liberty” (industry in the private sector without governmental interference) to only ourselves and our posterity, not the posterity of other nations and continents, only to have them nullified by incoherent, convoluted, arbitrary and ideological revisions from the aforementioned “secular priesthood,” its ilk and political allies bent on universal salvation, eschewing freedom and self-reliance?

    Yep. It’s true.

    They Established, Insured, Provided For and Promoted; that and nothing but that, so help them God. What, you ask – Justice, Tranquility, Common Defence and General Welfare (excluding individual welfare). Why, you ask – to facilitate the “blessings of liberty” which are our endeavors, businesses and industries (including education, charity and healthcare) conducted in the free markets of the private sector without governmental interference.

    “Integrity of the law.” You don’t say?

    Pity America.

  39. All I can see is that you’re helping the racists in the Republican Party. You have good arguments and intentions, but in reality, you’re just helping the evil if racism that is so deeply rooted in white Republicans. Racism is MORE EVIL than the balance of power between the branches of government. And no, I’m not a minority; I’m just a white man who’s sick if all the Republican racism toward this President.

  40. @messpoo

    Oh, I am just about through. Just go ahead and hold your breath because I promise if you like my story you can keep my story sooo just go ahead and take a deep breath and hold it! Okay??? It will just be a few more seconds. . . I promise. . .

    Squeeky Fromm
    Girl Reporter

  41. John:

    “John
    Squeeky Fromm, Girl Reporter

    Beware the decompensating narcissists suffering low self-esteem that loiter on this site, craving the opportunity to go ad hominem. Factuality, rationality and objectivity are not prerequisite herein.

    Universal salvation through proper indoctrination is the unassailable rationale for declaring endeavor, sacrifice and success evil, and imposing punitive taxation to accomplish it.

    Pity America.”

    ***************************

    One wonders how you can be both a narcissist and have low self-esteem but why stop you when you’re on a polysyllabic roll. It’s so rare among the conservative crowd that it’s refreshing despite the nonsensical meaning. Please carry on.

    BTW, Let us know when you’re leaving the country so we can tell everyone we know that you are not a hypocrite.

  42. Squeeky:

    “. Just go ahead and hold your breath because I promise if you like my story you can keep my story sooo just go ahead and take a deep breath and hold it! ”

    *******************

    I’ll wait forever because every second I do proves my point that your accomplishments –such as they are — pale in comparison to your betters whom you so viciously criticize.

    Like John, please carry on. I’ll keep chuckling.

  43. California death penalty system declared unconstitutional, today, by federal judge because it resembles some of the threads on JT’s blog and are therefore a violation of the Eighth Amendment (Opinion, PDF).

  44. Sqeeky:

    “Sooo it is my viciousness which so unnerves you.”

    *********************

    No, viciousness is ever so common among the conservative crowd. It’s your utter lack of accomplishment and your at-the-hip readiness to attack those who are accomplished that “unnerves me.” Rare to see a person with so little self-awareness. It’s fascinating.

  45. mespo727272: “One wonders how you can be both a narcissist and have low self-esteem”

    Actually, it’s pretty common. You can have a high self-evaluation and prioritize yourself but also be sensitive to negative feedback from others that indicate relatively low social value. An extreme (and also mentally ill) example is the recent Isla Vista shooter, Elliot Rodgers.

  46. @messpoo

    Well you don ‘t what I have or haven ‘t accomplished and you sha’nt because that is nunya! All you need to know is that I am a girl reporter and I write very good internet articles. Plus, I am very creative and have 2 cats. Plus, I help my BFF Fabia Sheen, Esq., an attorney, as a legal assistant when she needs help.

    But, since you are sooo interested in people ‘s accomplishments, maybe you should examine Obama more closely. I mean Bush Jr. won 2 elections but I bet you don ‘t stop at that point with him. I just bet you look at what he did and didn ‘t do. But with Obama you seem satisfied with his winning a few elections like that is enough to fully satisfy the accomplishment criteria.

    No wonder. He hasn ‘t done squat. Straight from election to lionization complete with a Nobel Prize.

    Squeeky Fromm
    Girl Reporter

  47. Incredible defense, Professor, of the supreme priority of SCOTUS – “to mine the lines of separation”. As you stated, this issue is not political, but only falls under “the patina of politics”, not having been started with this President.
    I think even Lazarus and Dellinger believed by the end of the day that a law suit was the only option left to address the erosion of the Legislative Branch.

  48. Bravo!

    I have to say again that the testimony of Jonathan Turley and Elizabeth Price Foley was outstanding. It was almost like a game of volley ball with Turley setting the ball with an overview of the separation of powers doctrine and Foley smashing the ball with an incredibly clear and precise argument, replete with precedent, regarding standing and institutional injury.

    Simon Lazarus, when he wasn’t fumbling for the mike, was fumbling for reasons in support of his argument. And Walter Dellinger’s argument was effectively disposed of by J.T. on rebuttal.

    Bonus points to J.T. for his ability to navigate his way through the meanderings of Rep. Hastings; formulating a coherent reply to an incomprehensible series of run-on sentences.

  49. I love estate sales, unless the sellers are rude. I once was at an estate sale that had the nastiest rude cashier, I simply told the cashier to go fly a kite, no sale. Later I found dozens of negative reviews of the seller and the cashier’s weird rudness. Selling ones wares, or ideas is easier to do when one doesn’t go out of their way to insult the prospective buyer. Pretty soon their customers leave one by one and take their business elsewhere. In the marketplace of ideas, the ideas and the seller of the ideas is usually rejected by reasonable people who won’t be won over by insults. Respect is a gift in the hands of the merchant.

  50. Squeeky,
    I wonder, would Hillary have been wrong in your eyes if she would be the President implementing the mandate portion of the ACA? She was all for the mandate, ya know.

  51. @Annie

    Probably not, because I doubt she would botched the whole thing up like President One-derful. I also think she would gone full bore single payer while she had both houses.

    But “Manchild on Air Force One” wasn’t either capable or competent enough to be involved in the process. So I am guessing he just played a lot with all the knobs and buttons on the various gadgets. His Chicago Gang was too busy lining their own pockets and flinging poo to help. The MSM was too busy flagellating themselves for being white. IMHO.

    Squeeky Fromm
    Girl Reporter

  52. Given Bob, Esq’s kudos, I’m sorry I don’t have TV so missed JT, et. at. Maybe he could change my mind. In any case, elsewhere on the planet,

    http://www.latimes.com/local/lanow/la-me-ln-california-death-penalty-ruled-unconstitutional-20140716-story.html

    Federal judge rules California death penalty is unconstitutional

    U.S. District Judge Cormac J. Carney, ruled on a petition by death row inmate Ernest Dewayne Jones, who was sentenced to die nearly two decades ago.

    ————

    FOR THE RECORD
    California’s death penalty violates U.S. Constitution, federal judge says
    A federal judge has declared California’s death penalty unconstitutional.

    July 16, 1:16 p.m.: An earlier version of this post said U.S. District Judge Cormac J. Carney was a federal judge in Los Angeles. He is a federal judge in Orange County.

    ————

    Carney said the state’s death penalty has created long delays and uncertainty for inmates, most of whom will never be executed.

    He noted that more than 900 people have been sentenced to death in California since 1978 but only 13 have been executed.

    “For the rest, the dysfunctional administration of California’s death penalty system has resulted, and will continue to result, in an inordinate and unpredictable period of delay preceding their actual execution,” Carney wrote.

    Carney’s ruling can be appealed to the U.S. 9th Circuit Court of Appeals.

    Carney, an appointee of former President George W. Bush, said the delays have created a “system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed,” Carney said.

    In overturning Jones’ death sentence, Carney noted that the inmate faced “complete uncertainty as to when, or even whether” he will be executed.

    The “random few” who will be executed “will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary,” Carney said.

    “No rational person,” Carney wrote, “can question that the execution of an individual carries with it the solemn obligation of the government to ensure that the punishment is not arbitrarily imposed and that it furthers the interests of society.”

    Natasha Minsker, a director of the ACLU of Northern California, said Wednesday’s ruling marked the first time that a federal judge had found the state’s current system unconstitutional. She said it was also “the first time any judge has ruled systemic delay creates an arbitrary system that serves no legitimate purpose and is therefore unconstitutional.”

    A Los Angeles County Superior Court judge in 1995 sentenced Jones to death for the 1992 rape and killing of Julia Miller, his girlfriend’s mother. Jones killed Miller 10 months after being paroled for a previous rape.

    Read the ruling: Judge orders California’s death penalty unconstitutional
    Read the ruling: Judge orders California’s death penalty unconstitutional

    A spokesman for Atty. Gen. Kamala D. Harris said only that her office was reviewing the decision.

  53. Back on topic, the executive branch has certainly assumed a lot of power going back many administrations. The power assumed by this administration has a lot more to do with the vacuum created by the current do-nothing-but-obstruct legislature than anything else.

  54. I seriously doubt Hillary would’ve gone for Single Payer. She is a moderate, not to the left of Obama.

  55. mespo727272,

    It just makes sense for most people, not just narcissists, that our self in the context of our inner world is not the same as our self in the context of the social world. They’re not completely firewalled, but the inside-in and outside-in inputs are distinct.

  56. Eric:

    Jargon aside, there is a clinical difference between high self-esteem and narcissism as the article notes. Narcissists simply don’t care. People with high self-esteem may care about others very much and are not properly called narcissists. However, there is no evidence to suggest that narcissists have low self-esteem.

  57. Squeeky:

    Remind me not to have you do any research for me. The article you provided says narcissists have fragile self-esteem not low self-esteem. You can have fragile low or fragile high but narcissists have fragile high as YOUR article says.

  58. OMG, some people are just sooo stubborn about inconsequental stuff. Sooo, this just screeeeeeaaams for an Irish Poem :

    To Cluster B Or Not Cluster B???
    Or, Brittle Girl Blue
    An Irish Poem by Squeeky Fromm

    There once was a girl histrionic
    Whose outbursts were frequent and chronic.
    And not to belittle. . .
    Her ego was brittle
    Though her head spun around quite demonic.

    Squeeky Fromm
    Girl Reporter

  59. Bob, Esq,:

    Thanks for the link, Bob. I watched the original presentations and I have to say the sides were well matched. I thought JT did his usual fine job articulating his position but I was struck by the presentation of Walter Dellinger. Dellinger was particularly adroit at explaining the merits of the standing issue and his belief supported by Marbury v. Madison that the SCOTUS is not a knight errant charged with roaming the countryside looking for constitutional dragons to slay. To hear that 8 out of 9 justices have already ruled that way was enlightening. Sounds like the suit is a dead letter.

    BTW was that you in that white suit?

  60. OMG! Virginia Foxx heartily agreed with JT. With friends like her, you really don’t need enemies. She’s the dolt who voted against Hurricane Katrina aid and warned us all about the death panels under the ACA. What a loon!

  61. @messpoo

    I doggedly deny that I am stubborn!!! Anyway, my Millon book is at home sooo I am flying a little blind. I can see your distinction between high fragile and high secure. But I am having difficulty distinquishing between low self esteem and broken high self esteem. Do you have any examples explaining how the two might present???

    Squeeky Fromm
    Girl Reporter

  62. Squeeky:

    No I give you credit. You did come around from that insane birther position but you sure took your sweet time. I consider you inexperienced but game. There’s value to that. I think you can be educated out of this Republicanism/modern conservatism. Hopefully your friends can help there. Bottom line — you’re like an errant bullet: quick (as in witted); narrow (as in life experience) but capable of new trajectory. Good luck on the path.

  63. @messpoo

    Thank you for saying nice things. I am only a conservative person on social stuff. On economic stuff, I am more progressive. Which I think is a blue dog democrat. But I have voted Republican the last two times for president.

    Squeeky Fromm
    Girl Reporter

  64. America fronts itself off as a plant with three branches of government which are supposed to counter balance each other. I see some problems here. The Congressional branch has become too greedy and dependent on donors such as the Koch Brothers. They are too busy to legislate. The judiciary is hung up on such things like the Original Thinking of the Original Framers of the Original Constitution. They have little thought for say the Framers of the Reconstruction Amendments which for edification to readers are the 13th, 14th and 15th. The Original Framers would have trouble with nine Justices on the Court that are all from Harvard and Yale, three ware women, three are Italian, one is black and six or so of them are from Jersey and New York and speak turdy turd and a turd. I learned all of this from BarkinDog in a prior blog. Then the Executive will not do enough to move the machinery of government forward in light of the lame Congress. The President gets blamed for doing too much on his own. I think that it is time for some people to Occupy The Halls of Congress and demand some work, some time in the Halls and not on K street and C Street. The theme in this topic today is good because it shows the ineptness of Congress. Obama needs to do more not less. Congress needs to do a lot more. Vote them all out.

  65. Mespo,

    Elizabeth Price Foley’s discussion of standing and institutional injury was far more convincing.

    Furthermore, her discussion of Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427 (2014) and Kerr v. Hickenlooper 744 F.3d 1156 (10th Cir. 2014) clearly show why the suit has merit.

  66. For heavens sake, Mike, it makes no difference to most of us what color or ethnic origin Obama is! He’s the prez, black, red, white or yellow. OF COURSE his overstepping the bounds of the Constitution & everything else is FAR MORE IMPORTANT to check than a PERCEIVED racism. I’m not saying there are not Republican racists out there, but your priorities are so muddled to let a black man screw up our country in case you look racist stopping him!

  67. Saw you on CSPAN. I have the exact same concerns, actually I’m terrified by the situation. The Congress and Senate are supposed to be the people’s representatives. Those bodies have given up their power to powerful federal departments and agencies, letting them make up rules and laws without (in my opinion) proper oversight. They’ve allowed Presidents to usurp their authority and have picked Supreme Court Judges that seem to like stretching the Constitution into bizarre shapes. (I hated the Kelo (sp?) decision). When Congress lets others usurp their power they let our power (the people) be stolen as well. Thank you for speech you gave. It made be feel good that someone could so perfectly and in such a statesman like fashion express my fears.

  68. the democrat woman even before hearing anything from anyone called this lawsuit as “ridiculous”. Enough said about the character and intellect of present day democratic party!

  69. Professor Turley, I have a question. Our president went to Harvard Law School. His professors there helped him in his campaign by endorsing him in campaign ads. He called himself as “Professor of Constitution” at the U of Chicago, I believe. In view of all these facts, and the way he has “protected” the constitution, what should I think about the quality of Law education imparted at Harvard and U of Chicago?

  70. I have just concluded a marathon session on cspan.org. The presentations by Prof. Turley and the other three panelists were outstanding. It was actually an interesting hearing, and would have been even more interesting if some of the committee members knew what they were talking about. In any event, my take is that the lawsuit will fail. I certainly agree, and have stated on previous occasions, that the executive branch is out of control. The two major parties have been co-conspirators in ceding legislative authority to the president over the course of decades. I have also expressed my belief that the rule-making power routinely granted by Congress to various agencies frequently involves an unconstitutional delegation of legislative authority. Nevertheless, the fact is that Congress has created the monster, and will now be asking the courts to kill it, rather than using those weapons already at its disposal. I do not expect the courts will be willing to do Congress’ dirty work.

    I am not persuaded that the President’s ACA actions represent an institutional injury to the legislative branch. And even if they did, Congress could readily respond through legislative action or, if necessary, impeachment proceedings. In short, the legislative branch is not without a remedy. The Utility Air Regulatory Group case is not particularly helpful because it is so fact intensive. And the Hickenlooper case is readily distinguishable on the matter of institutional injury. Furthermore, I find Professor Foley’s reliance on congressional subpoena cases to be misplaced; it is certainly appropriate to ask the courts’ assistance in carrying out what are actually quasi-judicial legislative functions.

    In short, I believe that the proposed lawsuit is driven more by political considerations than legal analysis. There’s nothing inherently wrong with that, I suppose, but it means that we should not expect anything of legal substance to result from the effort.

    If the legislative branch wants to restore balance, it might consider legislating. It might consider assuming responsibility for policy making, rather than engaging in the sort of passive-aggressive blame shifting games it prefers to play with the executive branch. It might consider standing up for itself rather than requesting a judicial bailout. And it might consider adopting a practice of slapping down every presidential signing statement that rears its ugly little head. And I might live to be 200.

  71. what do I know:

    Your views of a single individual should have no bearing whatsoever on your views of that individual’s gender, race, religious identity or alma mater. Surely you were not intending to ask a serious question.

  72. Mike Appleton, Even in my brief message I mentioned more than an individual problem, but ofcourse what do I know….

  73. “what do I know”, did you notice how mike brought in race, sex/gender into his comment…:-) so typical

  74. Mike Appleton,

    “The two major parties have been co-conspirators in ceding legislative authority to the president over the course of decades.”

    Generations might be a more apt time reference, but your valid point is unchanged.

    “Nevertheless, the fact is that Congress has created the monster, and will now be asking the courts to kill it, rather than using those weapons already at its disposal. I do not expect the courts will be willing to do Congress’ dirty work.”

    Well said.

    @ what do I know

    Very little, it would seem.

  75. Just because:

    “If the legislative branch wants to restore balance, it might consider legislating. It might consider assuming responsibility for policy making, rather than engaging in the sort of passive-aggressive blame shifting games it prefers to play with the executive branch. It might consider standing up for itself rather than requesting a judicial bailout.”

  76. Just because it bears repeating, is what I meant to say. So, to make it clear:

    “If the legislative branch wants to restore balance, it might consider legislating. It might consider assuming responsibility for policy making, rather than engaging in the sort of passive-aggressive blame shifting games it prefers to play with the executive branch. It might consider standing up for itself rather than requesting a judicial bailout.”

  77. @what do I know;

    “‘what do I know’, did you notice how mike brought in race, sex/gender into his comment…:-) so typical [sic]”

    Do you always self-reference?

    Spelling is not phonetic, though many think it is.

  78. From page 18 of the online copy of the testimony of Elizabeth Price Foley:

    It is important to notice what is missing from this six-pointed star of executive power: The executive does not have the power to nullify (contradict) an unambiguous law written by Congress, as the Supreme Court recently reiterated in Utility Air Regulatory Group v. EPA, a case that will be examined in detail in the next section.

    One of the research methodological approaches I use in my bioengineering-based research into public safety aspects of the structure of human society is searching for false implicit premises in the art of philosophical argumentation.

    My encounters with human society, the life I find I am able to live, general semantics, semiotics, and biosemiotics, combine to inform me that it is a false implicit premise that any law written by Congress can ever be unambiguous. I find that the ,mapping of words, as symbols of meanings, to meanings words symbolize is inextricably ambiguous. There can never be an unambiguous law written, whether by Congress or in any other way. A sufficient grasp of information theory and communication theory appears to me to absolutely rule out the writing of any unambiguous law.

    A false premise does not imply a false conclusion; however, false premises do permit, and may vigorously embrace, false conclusions.

    Perhaps the work of the late Senator Hayakawa is relevant, specifically his several times revised book: Language in Thought and Action.

  79. Oliveoyl, I did not know that “what do I know” has been patented by one person:-) oops now Oliveoyl is self- referencing too? Guess things are not always what oliveoil or oliveoyl may think to be true…something that some people, who claim to have the absolute truth, and think they are the ones who we have been waiting for , may never understand….but what do I know , I know nothing in comparision to the enlightened ones…

  80. Senate = 100 members
    House = 435 members
    Admin = 1 president + cabinet
    ==========================================
    total 536+ people to make decision

    district court = 1 judge
    appeal court = 3 judge panel
    S.Ct. = 9 justices
    ================
    13 people to make decisions

    Non-justiciable is a valid constitutional concept …

    But there are times when the courts must say what the law is.

  81. Mike A:

    In the main I agree with your comment but I take issue with your analysis of the cause of the problem. You’re way too bipartisan. It is not as though all of Congress has abdicated it’s a responsibility. It’s largely the work of one party who is ideologically opposed to government and anything government does. That obstinacy has created the power vacuum that Presidents were bound to fill. It wasn’t imperialistic designs by the nation’ stop executive, it was the simple fact that someone had to do the necessary work. Republicans have sown the seeds and now find themselves reaping the whirlwind.

  82. Disorder in the court: Embarrassments pile up for Boehner’s lawsuit
    Key Republicans distance themselves from Boehner’s lawsuit, and its legal backers contradict themselves
    By Simon. Maloy
    7/16/14
    http://www.salon.com/2014/07/16/disorder_in_the_court_embarrassments_pile_up_for_boehners_lawsuit/

    Excerpt:
    Jonathan Wiesman of the New York Times reported earlier today that one of the witnesses testifying in support of the House’s ability to sue the president, law professor Elizabeth Price Foley, wrote an Op-Ed for the Daily Caller just few months ago arguing that Congress cannot sue the president because it does not have standing. She was unambiguous about it, and specifically cited Obama’s move to delay enforcement of the employer mandate – the exact issue she’s now arguing the House has standing to sue over:

    “When a president delays or exempts people from a law — so-called benevolent suspensions — who has standing to sue him? Generally, no one. Benevolent suspensions of law don’t, by definition, create a sufficiently concrete injury for standing. That’s why, when President Obama delayed various provisions of Obamacare — the employer mandate, the annual out-of-pocket caps, the prohibition on the sale of “substandard” policies — his actions cannot be challenged in court.”

  83. I am sure it is to the great distress of Democratic party hacks and shills that neither talking points, spin, smears, and snark constitute evidence in court. Win, lose, or draw it is judges who will decide the merits of any suit.

    Squeeky Fromm
    Girl Reporter

  84. Squeeky, John Boehner is considered to be the biggest hack in Washington. He is totally owned by K street. It is his lawsuit you know, and he hired the republican witnesses. Prof Elizabeth Price Foley is a strong admirer of the tea party and has written a book that praises it. Pretty much everything is political about this lawsuit. Judges are often political, too, you know.

  85. Squeeky:

    In the absence of standing to sue, a case does not get heard, regardless of the merits. My view is that standing cannot be established in this instance. That is not really a partisan issue.

  86. Annie, I have my doubts that Squeeky really supports Hillary as Hillary is not a social conservative.

  87. SWM, Squeeky said she’d vote for her a few days ago. I recall those Puma women who went nuts when Obama got the nomination, she kind of reminds me of one of those Pumas. They hate Obama with a vengeance, vengeance being the focus.

  88. @smarmmoremom

    So what??? Are you incapable of distinguishing between your personal beliefs and general political principles??? I can ‘t stand Boehner and his crybaby stuff. He needs to be back running the family bar. But the issue is whether or not Obama is exceeding the scope of his authority. Too many lefties herd are unable to separate that from “But I like Obama” or ” But he ‘s a democraaaaaatttt”.

    Shades of Adolf Hitler if half of the Reichtag uh er uh I mean Congress doesn ‘t stand up and cheer when Obama promises to circumvent Congress. You and others here need to do some real deep soul seaching and try to figure out how you lost your way.

    Squeeky Fromm
    Girl Reporter

  89. @Annie

    Vote for her??? Heck I am going to volunteer at her campaign hg and do everything I can to get her elected. I may even get me a blue dog, in spite of me having two cats. They will just have to adjust.

    Squeeky Fromm
    Girl Reporter

  90. Squeeky, spoken like a true PUMA, lol. Your buddy Spinelli will be heartbroken, it seems he hates Hillary with a ‘vengeance’.

  91. Squeeky, what makes you think Hillary wouldn’t have done the same as Obama if she also had an obstructionist Congress?

    BTW, how do you think Hillary handled the Benghazi! situation?

  92. @annie

    Thats my point. If Hillary did stuff like Obama , then she should be sued too. Why would you expect me to say anything different??? This stuff isn’t personal. If we let presidents just do what they please, we are all screwed. What the heck is sooo hard for you “true believers ” to understand about that???

    Squeeky Fromm
    Girl Reporter

  93. Mike Appleton: … It was actually an interesting hearing, and would have been even more interesting if some of the committee members knew what they were talking about.”

    You mean folks like Rep. McGovern? Who basically said “Well I don’t understand constitutional law, but blah, blah, blah, this is political, blah, blah.”

    That was annoying.

    Mike Appleton: “In any event, my take is that the lawsuit will fail.

    That was my initial reaction; until I heard and read what Foley had to say about meeting the four element test:

    1. Explicit legislative authorization: The lawsuit should be explicitly authorized by a majority of the House. It cannot be a “sore loser” suit initiated by an
    ad hoc, disgruntled group of legislators

    2. No private plaintiff available: The lawsuit should target the President’s “benevolent suspension” of an unambiguous provision of law, such that there would be no private plaintiff available to adjudicate the propriety of the suspension.

    3 No political “self-help” available: The lawsuit should target presidential action that cannot be remedied by a simple repeal of the law.

    4. “Nullification” of institutional power injury: The institutional injury alleged
    should be one that reasonably can be characterized as a nullification of legislative power.

    Mike Appleton:I am not persuaded that the President’s ACA actions represent an institutional injury to the legislative branch. And even if they did, Congress could readily respond through legislative action or, if necessary, impeachment proceedings. In short, the legislative branch is not without a remedy.

    I disagree. Repealing the law does not remedy the issue of congress demanding the executive faithfully execute the law. And impeaching the executive is far too drastic. Thus Article III intervention is the precise remedy needed.

    Mike Appleton: The Utility Air Regulatory Group case is not particularly helpful because it is so fact intensive.

    Here’s the general rule espoused by the majority in Utility Air Regulatory Group:

    “Were we to recognize the authority claimed by EPA inthe Tailoring Rule, we would deal blow to the Constitution’s separation of powers. Under our system of government, Congress makes laws and the President, acting at times through agencies like EPA, “faithfully execute[s]” them. U. S. Const., Art. II, §3; see Medellín v. Texas, 552 U. S. 491, 526–527 (2008). The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice. See, e.g., Barnhart v. Sigmon Coal Co., 534 U. S. 438, 462 (2002) (agency lacked authority “to develop new guidelines or to assign liability in a manner inconsistent with” an “unambiguous statute”).” UARG v. EPA 134 S. Ct. 2427 at (2014) (Slip Op. at 23)

    Looks good to me.

    Mike Appleton: And the Hickenlooper case is readily distinguishable on the matter of institutional injury.

    Hickenlooper EXPANDED on Coleman.

    Kerr v. Hickenlooper, 880 F. Supp.2d 1112, 1131 (D. Colo. 2012) (“As alleged, this injury is of a greater magnitude than the single instance of vote nullification in Coleman . . . . The injury alleged here is a concrete injury involving the removal of a ‘core’ legislative power of the General Assembly.. The allegations of the Operative Complaint are of such a magnitude that the term ‘dilution of institutional power’ appears insufficient to describe the alleged injury [the act] has effected on Plaintiffs’ core representative powers.”

    Benevolent suspension of law is a per se attack on the “core legislative power.”

    Mike Appleton: Furthermore, I find Professor Foley’s reliance on congressional subpoena cases to be misplaced; it is certainly appropriate to ask the courts’ assistance in carrying out what are actually quasi-judicial legislative functions.

    Prof. Foley: “the subpoena cases indicate that where the four elements do exist, federal courts in D.C. are quite willing to allow institutional injury legislator lawsuits against the executive.”

    Accordingly Mike, I respectfully disagree.

  94. http://www.washingtonpost.com/opinions/dana-milbank-a-lawsuit-with-little-merit/2014/07/16/73dd7d2e-0d38-11e4-8341-b8072b1e7348_story.html “Rep. Pete Sessions, the House Rules Committee chairman who led Wednesday’s hearing on Republicans’ plans to sue President Obama, presented the legal credentials that have put him in this position of responsibility.

    “I’m an Eagle Scout,” the Texas Republican told his colleagues. “I studied the merit badges that we took about governance, about cities, states, the national government.”

    Merit badges! And his experience in the Boy Scouts isn’t the only thing that made Sessions a legal expert. He said he had “great professors” when he studied political science at Southwestern University. Also, Sessions told the panel, his father was a judge, and young Pete “understood his love of the law.”

    See? The GOP lawsuit isn’t just a stunt to appease conservatives who would rather impeach Obama. It’s a serious legal case — Scout’s honor!

    The chairman’s recitation of his constitutional credentials was just one of the things that turned Wednesday’s hearing into an amateur hour — or an amateur five hours.”

  95. “There was also the testimony of Elizabeth Price Foley, a law professor from Florida International University who testified with conviction that “the House would have an excellent chance of winning” its lawsuit against Obama for delaying parts of Obamacare. Her confidence, however, was undermined by an article she wrote five months ago, arguing flatly that delays “cannot be challenged in court.”

    The other Republican witness, George Washington University law professor Jonathan Turley, was more consistent: He has bemoaned executive authority since he testified in support of Bill Clinton’s impeachment, and he had an arsenal of urgent terms (Crisis! Uber-presidency! Tipping point!). But Turley lacked confidence in the outcome. He acknowledged that the Republican litigants are “going to have a hard time” in district court, that “many judges are hostile” to giving Congress the legal standing to sue and that “the president has the advantage on standing.” He counseled Republicans not to worry about the steep odds, saying, “I don’t believe that the challenges in front of this lawsuit is an excuse to do nothing.” from the Milbank article

  96. As I said in a previous comment, I think what they want to do is more properly pursued by impeachment. But it sounds so scary, they are afraid of the sound bite.

  97. Why not even Congress can sue the administration over unconstitutional executive actions

    By Elizabeth Price Foley

    Elizabeth Price Foley “I would like to note for the record that while I authored this op-ed, I did not author its title, which (misleadingly) implies that the article concludes that congressional standing to sue the President is not possible. I did not reach that conclusion at all; instead, the article explores the possibility that if courts refuse to adjudicate benevolent suspensions and if Congress refuses to impeach, the checks and balances presupposed by the Framers to check a runaway President are nonexistent.”

  98. Elizabeth Price Foley “I would like to note for the record that while I authored this op-ed, I did not author its title, which (misleadingly) implies that the article concludes that congressional standing to sue the President is not possible. I did not reach that conclusion at all; instead, the article explores the possibility that if courts refuse to adjudicate benevolent suspensions and if Congress refuses to impeach, the checks and balances presupposed by the Framers to check a runaway President are nonexistent.”

    *****

    Excerpt from Elizabeth Foley’s op-ed in The Daily Banter (2/7/14):
    http://dailycaller.com/2014/02/07/why-not-even-congress-can-sue-the-administration-over-unconstitutional-executive-actions/?utm_referrer=http%3A%2F%2Fwww.salon.com%2F2014%2F07%2F16%2Fdisorder_in_the_court_embarrassments_pile_up_for_boehners_lawsuit%2F

    When a president delays or exempts people from a law — so-called benevolent suspensions — who has standing to sue him? Generally, no one. Benevolent suspensions of law don’t, by definition, create a sufficiently concrete injury for standing. That’s why, when President Obama delayed various provisions of Obamacare — the employer mandate, the annual out-of-pocket caps, the prohibition on the sale of “substandard” policies — his actions cannot be challenged in court.

    Similarly, when the president decided not to deport certain young people, not to prosecute most marijuana users, and rewrote the work requirement of welfare reform, courts cannot rule on these acts’ constitutionality because no individual has suffered the personal harm required for standing. Sure, the Constitution and its separation of powers are tremendously harmed. But the Supreme Court has made clear such generalized societal harms won’t suffice.

    Congress probably can’t sue the president, either. The Supreme Court has severely restricted so-called “congressional standing,” creating a presumption against allowing members of Congress to sue the president merely because he fails to faithfully execute its laws.

    ****

    Foley’s op-ed may not have concluded that Congress has no standing to sue the President–but Foley did say that Congress probably can’t sue the president.

  99. I see no reason for it, but Prof. Foley is now misstating the position she took in the Daily Caller op-ed. One of her central points in that piece was that Congress lacks standing to sue the President on the grounds upon which Rep. Boehner intends to rely in his proposed action. Furthermore, she did not argue in that opinion that Congress lacks the ability to respond legislatively, only that she doubted congressional willingness to do so. A remedy does not cease to exist simply because one elects not to pursue it.

  100. Here’s the text of the Foley op-ed:

    “What happens if a president refuses to “take care that the laws be faithfully executed” as required by Article II of the Constitution? The Framers assumed that neither Congress nor the courts would tolerate such usurpation. In Federalist No. 48, James Madison said power was “so divided and balanced among several bodies … that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Madison’s confidence assumes a wayward president could be reversed by the courts, reigned in by Congress or — as a last resort — impeached. But what if none of these checks and balances works? Americans may soon find out.

    First, courts have limited ability to check a president’s failure to execute. The primary obstacle is “standing,” a doctrine that requires a plaintiff to have a concrete, personal injury in order to sue. Citizens can’t file generic lawsuits to enforce the Constitution; they must prove that the government has harmed them in a personal, palpable way.

    When a president delays or exempts people from a law — so-called benevolent suspensions — who has standing to sue him? Generally, no one. Benevolent suspensions of law don’t, by definition, create a sufficiently concrete injury for standing. That’s why, when President Obama delayed various provisions of Obamacare — the employer mandate, the annual out-of-pocket caps, the prohibition on the sale of “substandard” policies — his actions cannot be challenged in court.

    Similarly, when the president decided not to deport certain young people, not to prosecute most marijuana users, and rewrote the work requirement of welfare reform, courts cannot rule on these acts’ constitutionality because no individual has suffered the personal harm required for standing. Sure, the Constitution and its separation of powers are tremendously harmed. But the Supreme Court has made clear such generalized societal harms won’t suffice.

    Congress probably can’t sue the president, either. The Supreme Court has severely restricted so-called “congressional standing,” creating a presumption against allowing members of Congress to sue the president merely because he fails to faithfully execute its laws.

    If courts can’t be counted on to check the president, couldn’t Congress just enact another law reversing him, or even impeach him? In today’s hyper-partisan climate, the answer appears to be no.

    Even if the House passed a bill undoing presidential action — for example, a bill that declared, “We don’t want individuals brought into this country illegally to be exempt from deportation, and we really, really mean it this time” — the Democrat-controlled Senate wouldn’t likely allow a vote on the measure. House Republicans passed a spending measure this fall to keep the government operating. But because the bill included a one-year delay in Obamacare — something the president threatened to veto — Senate Majority Leader Harry Reid refused to even bring the bill to the floor.

    Indeed, why should Congress even bother to legislate in the current environment? If it somehow miraculously passed something the president opposed, it would be promptly vetoed, and getting two-thirds of both Houses of Congress to overrule his veto — particularly in the Senate — is as likely as a snowstorm in Miami.

    Even when a congressional majority agrees with the president and passes a law the president signs, there’s little confidence he will faithfully execute the law as written. Why pass comprehensive immigration reform, for example, if it includes tight border security or deportation measures with which the president disagrees and may ignore? As Congressman Paul Ryan put it, ”Here’s the issue that all Republicans agree on: We don’t trust the president to enforce the law.” The president’s failure to faithfully execute has made Congress grind to a halt and with it, democracy itself.

    If the president’s actions are so bad, why not just impeach him? Presidential impeachment has occurred only three times. Reconstruction President Andrew Johnson narrowly escaped conviction after the House impeached him for firing the Secretary of War in contravention of the Tenure of Office Act. Richard Nixon resigned after being impeached for obstructing an investigation into the Watergate break-in, and using the IRS and other executive agencies to target political opponents. Bill Clinton was impeached for abusing the judicial process and executive power to cover up his extramarital relationships. The Democrat-controlled Senate acquitted him.”

    Ah, … Sayonara, Professor Foley.

  101. The Daily Caller piece does not address the merits of Foley’s arguments in her testimony before the House on 2/26/2014

    “More importantly for present purposes, a President’s benevolent suspension of law is not reasonably subject to legislative self-help. First, it would be unreasonable for a court to refuse to adjudicate a President’s failure to faithfully execute on the rationale that Congress could “undo” the President’s act by repealing the law. In the benevolent suspension situation, Congress simply wants the President to faithfully execute the law as written. In these situations, repeal of the law would not constitute self-help at all; it would undo the very law that Congress is seeking to enforce. One might argue that Congress could pass another law that expressed its displeasure with the President’s benevolent suspension, but this would be an odd requirement, as the law would presumably need to declare something along the lines of, “Congress is re-declaring X, and this time we really, really mean it.” Asking Congress to re-enact a law it has already enacted—hoping the President will faithfully execute it the second time around—is both inefficient and tilts the balance of powers unfairly toward the Executive, allowing the Executive to ignore Congress unless Congress can muster the political will to re-enact its original law.

    Second, insisting that Congress take action other than repeal—such as denial of appropriations or even impeachment of the President—is similarly unreasonable under the circumstances. When congressional action is nullified by a President’s benevolent suspension, asking Congress to defund a law it simply wants to have faithfully executed is like asking Congress to cut off its nose to spite its face—a self-defeating overreaction that would make faithful execution of the law harder, not easier.

    Similarly, denying Congress standing to challenge a President’s benevolent suspension on the basis that Congress could just impeach the President would be a perverse rule of law that would effectively say, “We (courts) cannot adjudicate the constitutionality of the President’s suspension of law because if Congress is angry about its loss of legislative power, it should impeach the President.” While it is true that Congress is always free to impeach the President and has, in fact, done so on grounds of a failure to faithfully execute,119 impeachment is a drastic political remedy that should be a very last resort, not encouraged by courts as an preferable alternative to a peaceful judicial determination of constitutional parameters.

    Moreover, in the context of a President’s benevolent suspension of law, Congress and the country might otherwise be perfectly happy with the President’s performance in office. Suggesting that Congress “try impeachment first” rather than asking the courts to police separation of powers seems deeply inappropriate.

    Even more fundamentally, impeachment would not remedy the President’s benevolent suspension at all; it would simply remove the President from office and replace him with a new one, who may or may not continue the policy of the impeached President. In the situation in Coleman v. Miller, for example, the Kansas legislature could have impeached the Governor and/or Lieutenant Governor as a consequence of its anger over the Lieutenant Governor breaking the Senate’s tie vote on the Child Labor Amendment. If the availability of impeachment counseled courts to deny standing, Raines should have come out the other way and the Kansas State senators should have been denied standing. It would have been ridiculous for the Supreme Court to tell the Kansas State senators, “I’m sorry, we cannot adjudicate your constitutional claim about the validity of your State’s ratification of the Child Labor Amendment because if you were angry at the Lieutenant Governor for breaking your tie vote, you should impeach him rather than seeking judicial relief.” Impeaching the Lieutenant Governor of Kansas—like impeaching a President who benevolent suspends the law—simply would not remedy the injury-in-fact (nullification) committed by the Executive.”

    “Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws”

    Testimony before Committee on the Judiciary, U.S. House of Representatives, February 26, 2014

    http://judiciary.house.gov/_cache/files/432a1954-fb9d-4029-a10a-0ea1fd1a98ea/foley-testimony.pdf

    FN 119: “I would like to note for the record that while I authored this op-ed, I did not author its title, which (misleadingly) implies that the article concludes that congressional standing to sue the President is not possible. I did not reach that conclusion at all; instead, the article explores the possibility that if courts refuse to adjudicate benevolent suspensions and if Congress refuses to impeach, the checks and balances presupposed by the Framers to check a runaway President are nonexistent.”

  102. The Dem women here are conducting a war on women w/ whom they disagree. They are akin to Bubba’s “Bimbo eruption” goon squad. There is no nastier an environment than women cat fighting. No rules. No honor. That’s why Hillary must be stopped. She is not a righteous woman.

  103. So Squeeky, if Hillary messed up so badly, why are you going to volunteer at her headquarters and why would you vote for her?

  104. There’s a Democratic women’s war on women…a communist under every bed…and Obamacare death panels everywhere! Ohmigod, what shall we do? Where shall we go?

  105. I only said the first Elaine. I find you accusing me of saying the other things I did not say hurtful. I don’t feel safe when you ridicule me. It’s mean and nasty. It’s female bully tactics. Hillary is a female uber bully.

  106. Bob, Esq:

    Come on, Bob. She was “a’gin it before she was for it.” I liked her testimony too, but it is completely undermined by what she wrote. It’s that damn court of public opinion where you really can’t take inconsistent opinions and be believed.

  107. @Annie

    Because she is a grown – up and has good sense. I don ‘t you ‘ll see people asking where the adults are about her staff. I also think she will be able to work with the GOP unllke the na na na na boo boo Obama team. Look at some of the “gotcha” foolishness on this thread and others. “Obama exceeded his authority ” is met with “Sessions was a Boy Scout!”

    Wow! The lefties here have confused “smirk” with “work” when it comes to argument. Childishness and shallowness and vacuosness everywhere, egged on by a White House where such is the norm. I believe Hillary will expect better of her people.

    Squeeky Fromm
    Girl Reporter

  108. Mark,

    Foley’s explanation at fn 119, combined with the import of her testimony before the House on Feb. 26, makes her arguments perfectly clear.

    Of course if you removed your pundit sunglasses (the real dark ones) and put your lawyer hat back on …

    What a world this would be.

  109. Elaine,

    Speaking of shoveling crap, you really should have read Foley’s testimony before the House on Feb. 26th before making your comment on the Daily Caller article.

  110. Elaine M:

    “There’s a Democratic women’s war on women…a communist under every bed…and Obamacare death panels everywhere! Ohmigod, what shall we do? Where shall we go?”

    ******************

    You go, girl.

  111. Here’s Professor Foley again on “death panels” just one year ago. Note her caution on standing for Congress to intervene to stop the panel near the end of her screed:

    Signs of ObamaCare’s failings mount daily, including soaring insurance costs, looming provider shortages and inadequate insurance exchanges. Yet the law’s most disturbing feature may be the Independent Payment Advisory Board. The IPAB, sometimes called a “death panel,” threatens both the Medicare program and the Constitution’s separation of powers. At a time when many Americans have been unsettled by abuses at the Internal Revenue Service and Justice Department, the introduction of a powerful and largely unaccountable board into health care merits special scrutiny.

    For a vivid illustration of the extent to which life-and-death medical decisions have already been usurped by government bureaucrats, consider the recent refusal by Health and Human Services Secretary Kathleen Sebelius to waive the rules barring access by 10-year old Sarah Murnaghan to the adult lung-transplant list. A judge ultimately intervened and Sarah received a lifesaving transplant June 12. But the grip of the bureaucracy will clamp much harder once the Independent Payment Advisory Board gets going in the next two years.

    Former Justice Department attorney David Rivkin on why President Obama’s suspension of the ObamaCare employer mandate will give millions of Americans legal standing to sue. Photo: Getty Images

    The board, which will control more than a half-trillion dollars of federal spending annually, is directed to “develop detailed and specific proposals related to the Medicare program,” including proposals cutting Medicare spending below a statutorily prescribed level. In addition, the board is encouraged to make rules “related to” Medicare.

    The ObamaCare law also stipulates that there “shall be no administrative or judicial review” of the board’s decisions. Its members will be nearly untouchable, too. They will be presidentially nominated and Senate-confirmed, but after that they can only be fired for “neglect of duty or malfeasance in office.”

    Once the board acts, its decisions can be overruled only by Congress, and only through unprecedented and constitutionally dubious legislative procedures—featuring restricted debate, short deadlines for actions by congressional committees and other steps of the process, and supermajoritarian voting requirements. The law allows Congress to kill the otherwise inextirpable board only by a three-fifths supermajority, and only by a vote that takes place in 2017 between Jan. 1 and Aug. 15. If the board fails to implement cuts, all of its powers are to be exercised by HHS Secretary Sebelius or her successor.

    The IPAB’s godlike powers are not accidental. Its goal, conspicuously proclaimed by the Obama administration, is to control Medicare spending in ways that are insulated from the political process.

    This wholesale transfer of power is at odds with the Constitution’s separation-of-powers architecture that protects individual liberty by preventing an undue aggregation of government power in a single entity. Instead, power is diffused both vertically—with the federal government exercising limited and enumerated powers and the states exercising all remaining authority—and horizontally, with the powers of the federal government divided among the executive, legislative and judicial branches.

    This diffusion of power advances another key liberty-enhancing constitutional requirement: accountability. Accountability enables the people to know what government entity is affecting them, so that they can hold officials responsible at the polls. Congress can also hold the executive responsible through oversight and measures like impeachment.

    As Chief Justice John Marshall observed in Wayman v. Southard (1825), Congress may delegate tasks to other bodies, but there is a fundamental constitutional difference between letting them “fill up the details” of a statute versus deciding “important subjects,” which “must be entirely regulated by the legislature itself.” Distinguishing between the two, the court said, requires an inquiry into the extent of the power given to the administrative body.

    The power given by Congress to the Independent Payment Advisory Board is breathtaking. Congress has willingly abandoned its power to make tough spending decisions (how and where to cut) to an unaccountable board that neither the legislative branch nor the president can control. The law has also entrenched the board’s decisions to an unprecedented degree.

    In Mistretta v. United States (1989), the Supreme Court emphasized that, in seeking assistance to fill in details not spelled out in the law, Congress must lay down an “intelligible principle” that “confine[s] the discretion of the authorities to whom Congress has delegated power.” The “intelligible principle” test ensures accountability by demanding that Congress take responsibility for fundamental policy decisions.

    The IPAB is guided by no such intelligible principle. ObamaCare mandates that the board impose deep Medicare cuts, while simultaneously forbidding it to ration care. Reducing payments to doctors, hospitals and other health-care providers may cause them to limit or stop accepting Medicare patients, or even to close shop.

    These actions will limit seniors’ access to care, causing them to wait longer or forego care—the essence of rationing. ObamaCare’s commands to the board are thus inherently contradictory and, consequently, unintelligible.

    Moreover, authorizing the advisory board to make rules “relating to” Medicare gives the board virtually limitless power of the kind hitherto exercised by Congress. For instance, the board could decide to make cuts beyond the statutory target. It could mandate that providers expand benefits without additional payment. It could require that insurers or gynecologists make abortion services available to all their patients as a condition of doing business with Medicare, or that drug companies set aside a certain percentage of Medicare-related revenues to fund “prescription drug affordability.” There is no limit.

    If the Independent Payment Advisory Board exercises these vast powers, political accountability will vanish. When constituents angrily protest, Congress, having ceded its core legislative power to another body, will likely just throw up its hands and blame the board.

    Since ObamaCare eliminates both judicial review for any of the board’s decisions and public-participation requirements for rule making, this unprecedented insulation of the board guts due process. Even the president’s limited ability to check the board’s power—since he can remove members only for neglect or malfeasance—represents a more circumscribed standard than usual for presidential appointees.

    The bottom line is that the Independent Payment Advisory Board isn’t a typical executive agency. It’s a new beast that exercises both executive and legislative power but can’t be controlled by either branch. Seniors and providers hit hardest by the board’s decisions will have nowhere to turn for relief—not Congress, not the president, not the courts.

    Attempts to rein in government spending are laudable, but basic decisions about how and where to cut spending properly belong to Congress. In the 225 years of constitutional history, there has been no government entity that violated the separation-of-powers principle like the Independent Payment Advisory Board does.

    While the board is profoundly unconstitutional, it is designed to operate in a way that makes it difficult to find private parties with standing to challenge it for at least its first several years in operation. An immediate legal challenge by Congress might be possible, but also faces standing difficulties. Unless and until courts rule on IPAB’s constitutionality, Congress should act quickly to repeal this particular portion of ObamaCare or defund its operations.

  112. Elaine, I’m doing my Dem female victim impersonation. It’s stupid isn’t it! Good to see you can recognize how stupid it looks and sounds. The next BIG step is to recognize it in your own circle group of fellow Dems. But, your making yourself a victim from something I said days ago shows you like being a victim and holding a grudge. So, my hopes for your self awareness are slim. Putting politics aside, it’s just not healthy to consider yourself a victim, and to hold grudges. It’s wasted negative energy.

  113. Bob, Esq:

    “Of course if you removed your pundit sunglasses (the real dark ones) and put your lawyer hat back on.”

    ***************

    Actually, I put my lawyer glasses on and quoted her directly. This was no conditional statement. It was declarative: ” That’s why, when President Obama delayed various provisions of Obamacare — the employer mandate, the annual out-of-pocket caps, the prohibition on the sale of “substandard” policies — his actions cannot be challenged in court.”

    She makes a similar categorical statement about immigration: “Similarly, when the president decided not to deport certain young people, not to prosecute most marijuana users, and rewrote the work requirement of welfare reform, courts cannot rule on these acts’ constitutionality because no individual has suffered the personal harm required for standing. Sure, the Constitution and its separation of powers are tremendously harmed. But the Supreme Court has made clear such generalized societal harms won’t suffice.”

    One wonders how Congress can claim injury if the people so harmed can’t, but in any event, like any other expert if you show she said something different before it undermines her credibility now. That’s pretty basic.

    Check those rosy lenses in your glasses. It might be the ocular problem for you.

  114. Mark,

    Two things.

    First, you haven’t addressed the merits of Foley’s arguments from Feb 26 or yesterday.

    Second, your last post is Foley objecting to the growth of a particular portion of a Fourth Branch of government.

    Exactly how does that relate to her testimony before the House?

    And if what Foley discussed is what you consider a “screed” then I take it that J.T.’s post here is also a “screed?”

    https://jonathanturley.org/2013/05/26/the-rise-of-the-fourth-branch-of-government/

  115. Here’s Professor Foley yet again in Politico (Can Obama’s Legal End-Run Around Congress Be Stopped?) on Jan. 15, 2014. Note her general feeling that Raines decision was properly decided to presume that Congress cannot sue the President due to lack of standing:

    But Congress’s ability to reclaim its powers through litigation faces a substantial roadblock in the form of a presumption against congressional “standing.” Standing is a constitutional prerequisite to maintaining a case in federal court; without it, a case is quickly dismissed. A plaintiff has standing when he or she can demonstrate a concrete, particularized injury, caused by the defendant, which can be remedied by a court. Abstract injuries suffered by society at large do not suffice.

    The Supreme Court seemed to shut the door to congressional standing in Raines v. Byrd (1997), a lawsuit brought by six congressmen who challenged the constitutionality of the presidential line-item veto. The court held that the congressmen lacked standing, because the loss of congressional power they lamented was a “wholly abstract and widely dispersed” injury.”

    The post-Raines presumption against congressional standing is appropriate as a general matter.”

    She then goes on to tell us what the law should be:

    “But Raines is best understood as establishing only a presumption against congressional standing that can be rebutted in the right circumstances. Indeed, there are powerful reasons why members of Congress should be permitted to sue the president when the situation warrants.

    First, standing should not bar enforcement of the separation of powers when there are no other plaintiffs capable of enforcing this critical constitutional principle. In Raines itself, for example, the court knew that other plaintiffs, who possessed standing, were waiting in the wings to sue the president. Indeed, in the subsequent case of Clinton v. City of New York (1998), standing was established by several businesses, individuals and a city that had lost tax benefits, and the court then declared the line-item veto unconstitutional.”

    As panelist Walter Dellinger III said what “should” be the law and what “is” the law are two different things.

  116. Mespo,

    Some people have no sense of humor, are hostile to those who disagree with them, and like to lecture and label others. I posted an excerpt from Foley’s op-ed, left a brief comment…and the accusations began.

  117. Bob, Esq:

    I’m not talking about her argument. I’m talking about her utter lack of credibility on the topic. We can hash out the merits but the initial question I have is “Who vetted this yo-yo before her Congresional testimony?”

  118. Mark,

    Foley is the author of a brief; not a witness in court.

    The proof is in the pudding; and you sir haven’t even taken out your spoon yet.

  119. Elaine M:

    “Some people have no sense of humor, are hostile to those who disagree with them, and like to lecture and label others. I posted an excerpt from Foley’s op-ed, left a brief comment…and the accusations began.”

    ***********************

    Believe me I know. I posted her stuff in its entirety to avoid the charge of cherry-picking. You can read it for yourself. This chick is all over the place.

  120. Bob, Esq:

    “Foley is the author of a brief; not a witness in court.”

    ********************

    Nope, she was a witness before Congress and — judging by this stuff — a poor choice at that.

  121. Mark: “I’m not talking about her argument.”

    Thus making your argument…

    what’s that word?

    ….

    Oh yeah.

    Fallacious.

  122. Not really, Bob, Esq. We’re talking credibility here. She’s made the case against her own argument in her previous writings. How could I do any better?

  123. BTW Bob, “screed” is the exact right word for Foley’s almost breathless attack on so-called “death panels.” You can get the tone in the first paragraph. JT’s testimony and writing was not overly emotional or angry. That’s the difference.

  124. So Mark, you’ve dismissed Foley’s position based on her inconsistency and NOT the position she presented in her written and spoken testimony on Feb 26 and July 16th.

    Can you say … Tu quoque?

  125. Mespo, Elaine likes to play victim and had a long tenure of having hacks come to her defense when anyone challenged her. They ALL would preface their bombastic defense w/ the perfunctory, “Elaine doesn’t need me to defend her.” I ALWAYS said she indeed did not. I treat her just like I do men. That’s the way I roll. And, Elaine does better than most men here in that regard. The allegedly progressive men didn’t really think she was capable and that was evidenced by their quick paternalism when Elaine was challenged. I NEVER saw Elaine tell her bodyguards to stand down. She obviously got something out of it. You evaluate people by what they do, and what they don’t do. Finally, Elaine does hold grudges. That is evidenced by her bringing up something for the first time about what I said days ago. That was festering and came out w/ a gentle prodding. I work people for a living mespo. So do you.

  126. From Professor Foley’s website:

    ” No one has captured the energy and essence of this vital movement better than Elizabeth Price Foley. She combines scholarship and lucid writing with a profound respect – embraced by the Tea Party – for the U.S. Constitution as it was originally crafted to secure individual liberty and restrain government power. While I might quarrel with Prof. Foley’s enthusiasm for America’s muscular global role, her intellectual defense of the Tea Party and her application of its credo to urgent and controversial issues have produced a powerful, provocative, and timely book, which I highly recommend.”
    – Robert A. Levy, Chairman, Cato Institute

    Ah, I have enough information to judge the credibility of our professor from Florida International School of Law.

  127. Mark,

    Your method of appellate argumentation is quite unique.

    Do you coach Sarah Palin in your spare time?

  128. Bob, Esq:

    “So Mark, you’ve dismissed Foley’s position based on her inconsistency and NOT the position she presented in her written and spoken testimony on Feb 26 and July 16th.”

    ********************

    Nope, I dismiss her argument based on what she wrote on July 15, 2013, Jan. 15, 2004 and Feb. 7, 2014. Her attachment to the Federalist Society and her “intellectual defense of the Tea Party” (an oxymoronic phrase if I ever heard one) are just icing on top (and corroborative) of my assessment.

  129. Mark: “I dismiss her argument based on what she wrote on July 15, 2013, Jan. 15, 2004 and Feb. 7, 2014. Her attachment to the Federalist Society and her “intellectual defense of the Tea Party”

    Translation: You’ve dismissed Foley’s position based on her inconsistency and NOT the position she presented in her written and spoken testimony on Feb 26 and July 16th.

    Tu quoque

    QED

  130. @messpoo

    Oh, you are degenerating into a complete elitist snob, aren ‘t you. Dismissing Foley because she supports the Tea Party. OK, so their three corner hats are hokey, and frankly I get tired of America the Beatiful and would prefer Broken by KHZ.

    But you have to get past appearance and “affect” sometimes. I would trust a Sarah Palin to br president before I would Lizzy Warren, because Sarah wouldn ‘t fall for a bunch of BS. That being said, it would be aural torture to listen to her give a SOTU speech.

    Now, behave yourself!!!

    Squeeky Fromm
    Girl Reporter

  131. I am sorry that I have been away on other projects. I can see this thread turning personal so I ask that everyone return to the subject and not the personal stuff and recriminations. There is absolutely zero value in a tit-for-tat personal exchange for the rest of the commentators. I am not going to delete anything but I ask that we return to the subject of the posting or move on to one of the other topics.

  132. We need more Democratic women warring on women.
    That would be amazing, and good.
    And I am not kidding. The war on women campaign has devolved into a Marxist agenda.

  133. Nick,

    I have deleted a comment of yours in violation of our civility rule. I did not delete either side of the recent exchange but asked both sides to refrain from the personal jabs. I ask again that both sides leave this thread to the subject matter and not personal exchanges and observations.

  134. There was a cross rip there, professor. I would not have written my last comment if I saw yours prior to doing so. Hopefully you know that to be the case. Yours and my comments were timed almost simultaneously. Sorry for the bother.

  135. GaryT, Lol. You have been showing some great humor of late. Keep it up. We all need humor in our lives.

  136. Gary, I gave your question some thought. Senator Jay Bulworth in the movie, Bulworth, would have his bodyguards stand down. I think Warren Beatty made one of the best, and bravest political movies ever, in Bulworth. It was too true, taking to task political correctness ,duopoly and money. So, it was panned by the media and politicians alike for that reason. But, the suicidal Jay Bulworth would have told his bodyguards to stand down.

  137. My point to make is that we have two branches which I see as not doing the job. The Legislative Branch is lame and needs some vitality that is not related to collecting money from the Koch Brothers. The Executive Branch has to do more in the way of Executive actions and have more dialogue with Congress. The Judicial Branch is failing us in the cases involving corporate influence.

    We the people all need to expose our Congressmen and women for not doing the job in DC and give em Hell Harry when they come home to collect money or go off on lobbyist paid trips.

  138. Bob, Esq,:

    You can hold your breath and stamp your feet all you want but the simple fact is that Professor Foley is asking us to believe something that she doesn’t believe herself as evidenced by her own unequivocal writings made before her Congressional testimony. Here in Virginia we call that a Massie v. Firmstone situation and we deny a litigant the opportunity to rise above their own unequivocal, contradictory testimony. I think that’s good policy and alleviates a lot of time debunking a theory that even the proponent doesn’t believe. Her theory may have credibility but she doesn’t so why worry about her. And why are you so hell bent to defend her? She ‘s the wrong witness; JT is the right one.

    It’s the poor advocate who won’t concede what is obvious to even the casual observer.

  139. Squeeky:

    “Oh, you are degenerating into a complete elitist snob, aren ‘t you.”
    ******************

    Not really. I like to think I’ve always been one in the sense that I admire excellence and expect that from folks I’m asked to believe on important issues. You know “elite” is not a dirty word. Don’t you want an elite physician examining you or an elite lawyer representing you? Or do you want a mediocre person with your life in his hands? Elitism can be a bad thing if it’s not based on real merit, and, in truth, if it’s not based on merit but on family connections or wealth or power, it’s not really elitism at all.

    This hearing was the Big Leagues and involved weighty matters of state. It deserved people who are qualified to opine as an expert and who genuinely believe their positions. It is not the province of political hacks or ideologues using intellectual tricks to promote an agenda. In its simplest terms it demands intellectual honesty. That is suspect with at least one witness. They could have picked another one but they didn’t. They chose her. You have to ask why?

  140. Terrific opening statement Professor. You looked really sad, however, mention of Pizza really changed your mood;-)

  141. @messpoo

    When you say it that way, then it makes more sense and sounds practical. But when you use “but aaahh she consorts with those ghastly Tea Partiers. Do cross her off the Cotillion list, Jeeves. I say, another mint julep sounds sooo delightful about now. Please run fetch me another one, Jemima. . .”

    See how stiff and patronizing that sounds??? How nobless obleegy??? Plus, if you do enough of that, your face will freeze that way like Rachel Maddows did with that goofy smirk thingy she has going.

    Squeeky Fromm
    Girl Reporter

  142. @enlightened

    my limited experience in life tells me that people who are genuinely superior do not talk about elites or judge, they are in a dynamic mode of living, wanting to improve themselves every day to be of more value to the world around them. They have absolutely no time to mock at others.

  143. Squeaky:

    I still like the words egalitarian, elite, and intellectual too.

    A lot of those critical of progressive views use these words as ad hominems.

  144. Mark,

    The spectrum of intellectual foils runs from the Scalia like to the Sarah Palin like.

    Dismissing Foley’s position based solely on her inconsistency and not the position itself presented in her testimony of Feb 26th and July 16th, i.e. out of nothing more than sheer ignorance, puts you squarely in the Sarah Palin category.

    That’s not only tu quoque, that’s the epitome of “holding your breath and stamping your feet.”

    “All of ’em, any of ’em that have been in front of me over all these years.” –Sarah Palin, unable to name a single newspaper or magazine she reads, interview with Katie Couric, CBS News, Oct. 1, 2008

  145. @GaryT

    That is because those concepts can also be used as a weapon. There is nothing wrong with being an intellectual. I think I am one. But there is something wrong with squeezing out the “attitude” or “affect” of intellectualism and using that to dismiss others who lack the trappings.

    What does that Desiderata poem say. ..even the small and meek have something to say. Or was that The Wizard of Oz???

    Squeeky Fromm
    Girl Reporter

    PS : There he goes again!

    http://dailycaller.com/2014/07/17/the-obama-admin-just-exempted-us-territories-from-obamacare/

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