800px-Capitol_Building_Full_ViewAs many on this blog are aware, I have previously testified, written, and litigated in opposition to the rise of executive power and the countervailing decline in congressional power in our tripartite system. I have also spent years encouraging Congress, under both Democratic and Republican presidents, to more actively defend its authority, including seeking judicial review in separation of powers conflicts. For that reason, it may come as little surprise this morning that I have agreed to represent the United States House of Representatives in its challenge of unilateral, unconstitutional actions taken by the Obama Administration with respect to implementation of the Affordable Care Act (ACA). It is an honor to represent the institution in this historic lawsuit and to work with the talented staff of the House General Counsel’s Office. As in the past, this posting is meant to be transparent about my representation as well as my need to be circumspect about my comments in the future on related stories.

On July 30, 2014, the House of Representatives adopted, by a vote of 225-201, H. Res. 676, which provided that

the Speaker is authorized to initiate or intervene in one or more civil actions on behalf of the House of Representatives in a Federal court of competent jurisdiction to seek any appropriate relief regarding the failure of the President, the head of any department or agency, or any other officer or employee of the executive branch, to act in a manner consistent with that official’s duties under the Constitution and laws of the United States with respect to implementation of any provision of the Patient Protection and Affordable Care Act, title I or subtitle B of title II of the Health Care and Education Reconciliation Act of 2010, including any amendment made by such provision, or any other related provision of law, including a failure to implement any such provision.

I have previously testified that I believe that judicial review is needed to rebalance the powers of the branches in our system after years of erosion of legislative authority. Clearly, some take the view of a fait accompli in this fundamental change in our constitutional system. This resignation over the dominance of the Executive Branch is the subject of much of my recent academic writings, including two forthcoming works. For that reason, to quote the movie Jerry Maguire, the House “had me at hello” in seeking a ruling to reinforce the line of authority between the branches.

As many on this blog know, I support national health care and voted for President Obama in his first presidential campaign. However, as I have often stressed before Congress, in the Madisonian system it is as important how you do something as what you do. And, the Executive is barred from usurping the Legislative Branch’s Article I powers, no matter how politically attractive or expedient it is to do so. Unilateral, unchecked Executive action is precisely the danger that the Framers sought to avoid in our constitutional system. This case represents a long-overdue effort by Congress to resolve fundamental Separation of Powers issues. In that sense, it has more to do with constitutional law than health care law. Without judicial review of unconstitutional actions by the Executive, the trend toward a dominant presidential model of government will continue in this country in direct conflict with the original design and guarantees of our Constitution. Our constitutional system as a whole (as well as our political system) would benefit greatly by courts reinforcing the lines of separation between the respective branches.

After I testified earlier on this lawsuit, I was asked by some House Members and reporters if I would represent the House and I stated that I could not. That position had nothing to do with the merits of such a lawsuit. At that time, in addition to my other litigation obligations, I had a national security case going to trial and another trial case in Utah. Recently, we prevailed in both of those cases. Subsequently, the House General Counsel’s Office contacted me about potentially representing House. With the two recent successes, I was able to take on the representation.

It is a great honor to represent the House of Representatives. We are prepared to litigate this matter as far as necessary. The question presented by this lawsuit is whether we will live in a system of shared and equal powers, as required by our Constitution, or whether we will continue to see the rise of a dominant Executive with sweeping unilateral powers. That is a question worthy of review and resolution in our federal courts.

Jonathan Turley


  1. Maggincat….I would suggest that you read Turley’s Aug.2, 2008 column re Speaker Pelosi’s rational for not pursuing the impeachment of Bush 43.
    You should probably look at the Senate’s 77-23 vote in support of Gulf War II ( Hillary and Kerry voted for that resolution).
    If you were better informed, you may not be so eager to spout your baseless accusation of racism..
    ..but I doubt it.

  2. Gee Turley………… did you ever give any thought to suing that war criminal, George Bush for all his illegal activities? Isn’t this silly lawsuit just to get the attention that you crave? Another whiny old white man raging about the Black man in his ‘White’ House.

  3. Old George:

    “do you actually think that if Congress passes a bill that the President will sign it? The House has been passing bills all along and the Senate has been refusing to bring them to the floor.”

    That is just it, The Dems. in the Senate have been refusing to take a vote and the Bills are not being brought to the floor for a vote. If the Leader calls for a vote, don’t they have to vote? If the Dems vote it down, it is on their head. It also appears they are protecting the Pres from having to veto if he says he will veto it. Already he is saying he has vetoed fewer than any president in recent years. Really!!!!! I say, call for a vote and send the darn Bill to Obama if the Senate passes it. If he refuses with a letter, then send it right back and make him veto it. It either gets signed or a veto. Either way the rejection belongs to him. A letter is not good enough. VETO IT OR SIGN IT. That at least would show that he got a Bill to veto and that congress is at least doing their part.

    Correct me if I am wrong, it has been many, many years since my college days but as I recall, after a Bill passes the House and is sent to the Senate, a call to vote should be made in the Senate so we can see who refused to pass the bill if it fails. After a Bill Passes and goes to the President’s office, if he does not sign it within 2 days I understand it automatically becomes law. Now if there has been a change, please let me know. A letter written to congress that he won;t sign a Bill sent to him is not enough. HE SHOULD EITHER SIGN IT OR VETO IT, not go around the veto by sending Congress a letter that he won’t sign. Doesn’t he have to own his actions, not blame the other party for his refusal to sign.

    Just my thoughts,

  4. Schulte: You tell them, I give up, you can talk until you are blue in the face and they will only argue, not explore the possibility that you may be right. Prof Turley is one who believes in our Constitution, and I applaud him for trying to help reign in the overreach of the President. It started years ago, but this one has made a regular practice of going around congress and we do have 3 divisions of this government (The House, The senate, and The President) not to omit the judicial arm. Each has its special duties and has separate functions.
    The President is there to see the laws are followed and to see to the protection of the Country….NOT TO MAKE THE LAW.. This legal action should be interesting. You go Prof!!!
    I have lived under a democracy for many decades and do not have the least desire to live under (God forbid) Sharia Law or under a Marxist government which POTUS has definitely leaned toward. Socialism…which can be defined as “total government control of an essentially redistributive economy or loosely as any government imposed compromise of pure capitalist principles on behalf of economic equality”;or with no border control as we now have; it is possible he is leaving us vulnerable to being overtaken by ISIS which is death or Sharia law.
    Take your pick, …… he ties the hands of our border patrol, and has desperately tried to disarm us, Made every effort to change our way of life, now he sits by and tells us we are safer today than ever before. Does he even have a plan? Is it a socialist government (Marxism) or Muslim rule that he wants. As he said when he was elected, “We are minutes away from totally transforming this government”. We all know he is begging for “One World Order” Question: Does he aspire to be the leader of that world? What is his plan? OR does he even have a plan?
    Once again, I applaud you Prof Turley for your part in trying to save our Constitution. I pray it is still standing when we elect a new President. Your efforts will be greatly appreciated to those of us who love freedom and the right to choose our religion. Thank you for your efforts.

  5. Reblogged this on Centinel2012 and commented:
    Lets hope you and the House are successful, this is a very important issue as I know you know. I wish you the best and lets hope the separation of powers, so critical to our Constitution and form of government, is upheld.

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