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:
Apparently. I’d like to cross-examine this professor.
Mark: “I’m not talking about her argument.”
Thus making your argument…
what’s that word?
….
Oh yeah.
Fallacious.
Bob, Esq:
“Foley is the author of a brief; not a witness in court.”
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Nope, she was a witness before Congress and — judging by this stuff — a poor choice at that.
Mespo, they were hoping we wouldn’t notice.
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.”
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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.
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.
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?”
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.
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.
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?”
http://jonathanturley.org/2013/05/26/the-rise-of-the-fourth-branch-of-government/
Good lord, speaking of childishness.
Elaine M is no victim. I can assure everyone of that.
Bob, Esq:
“Of course if you removed your pundit sunglasses (the real dark ones) and put your lawyer hat back on.”
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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.
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.
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.
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?”
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You go, girl.
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.
Bob,
What crap did I shovel in my comment?
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.
Poor widdle Nicky had his feelings hurt. But he knows how tough we duopoly cultists who shovel feces on the weekend are.
🙂
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.