This 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.
Here is the testimony: Testimony.Turley.HouseRulesCommittee
Senate = 100 members
House = 435 members
Admin = 1 president + cabinet
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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.
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…
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.
@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.
Thanks, Mike Appleton; for the above quotes.
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.”
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.”
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.
“what do I know”, did you notice how mike brought in race, sex/gender into his comment…:-) so typical
Mike Appleton, Even in my brief message I mentioned more than an individual problem, but ofcourse what do I know….
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.
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.
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?
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!
i’m a conspiracy theorist. the glass would be full if it wasn’t for the guy on the grassy knoll.
Pete:
“you really are the glass half full type.”
***********
Life’s mostly empty otherwise.
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.
mespo@7:49p.m.
you really are the glass half full type.
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!
Reblogged this on Sally's Political Page.