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
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.
Annie:
I missed that part. Was it an op -Ed about death panels?
@annie
Oh, and on Benghazi, she messed that up trying to be a team player on Obama ‘s little dysfunctional team.
Squeeky Fromm
Girl Reporter
@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
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?
Squeeky, spoken like a true PUMA, lol. Your buddy Spinelli will be heartbroken, it seems he hates Hillary with a ‘vengeance’.
@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
@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
Yep Elaine, that’s the article that was brought up. Embarrassing to say the least.
Why not even Congress can sue the administration over unconstitutional executive actions
By Elizabeth Price Foley
Law Professor, Florida International University
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
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.
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.
Annie, I have my doubts that Squeeky really supports Hillary as Hillary is not a social conservative.
oops Hacks
Professor Foley looked a bit peeved when her op-Ed was brought up in the hearing. That was interesting.
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.
Squeeky,
Too bad Hillary is Democrat, huh?
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.
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
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.”
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.