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
@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
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.
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.
LOL, Elaine. I wonder where some folks are coming from.
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?
So Squeeky, if Hillary messed up so badly, why are you going to volunteer at her headquarters and why would you vote for her?
JT, Thanks for your continued integrity in supporting the Constitution.
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.
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.”
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.
mespo:
I hope your post is in informed by my multi-posted point.
Impeachment is the proper avenue to do what Boehner wants to do.
Sooo, all the partisan hacks and shills who jumped on Foley were not only “irrelevant” and “immaterial” but also INCOMPETENT.
Squeeky Fromm
Girl Reporter
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.
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.
Bob, Esq.:
I guess I need to re-read Coleman and Hickenlooper and get back to you.
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.”
“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
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.”