As 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 Counselās 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 officialās 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 āhad me at helloā 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 Branchās 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 Counselās 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
wonder when will the supreme court will be deciding on the other lawsuit, and how that would impact this case.
Solidarity brother, nothing is easy and there are always losers, but the separation of powers is much larger as is the tragedy that will follow should they be eroded.
Regarding those who have cited Professor Turley as 3rd choice etc….please. Just please. Have you ever had to hire a lawyer for serious issues? You do not take the first offer, and if those you do contact are uniformly good lawyers, but demur after a first session, fine, that means they are honest, and then you will select the one, also honest, who will best represent you from those who do not demur. I really isn’t a hard concept.
Once again, I applaud Professor Turley for his willingness to take this challenge. There is some considerable risk involved for him.. Risks he’s willing to take to honestly represent a side. He’s the kind of lawyer I always have sought when in difficulties…honest and willing to tell me the truth and represent my side honestly as well.
PS: some of my lawyers over time have cost a good deal more than the $500 per hour cited on this thread. In every case they earned their pay and my result was financially sound as well…even if it set me back a bit as well. When I took the risk of whistle-blowing and found Rep John Conyers (D-MI) it was the best decision I ever made. I cited it earlier on this thread I think. He managed to keep me from needing new lawyers, but would have helped if they had been necessary. You must go for “character” first, and if you do, the rest will work out.
Does anyone here doubt Professor Turley’s character? If you do, why are you here? If you don’t think you will be heard, why voice an opinion?
@DBQ
I know the amnesty thingy hasn’t happened yet, but it is imminent. IIRC, the suit has not yet been filed??? So, wait a few days until after Obama does it. Prof. Turley needs to get his strategy right before he files suit, or if I am wrong and it has been filed, he needs to amend it.
Plus, Turley needs to make a good faith argument that the “standing” issue should not apply in this case, or be narrowly construed. Canadian law provides a hint on how to structure the argument:
Squeeky Fromm
Girl Reporter
I think JT’s Christmas party invites will be no more than 2-3 this year.
Nick – I am thinking the IRS is already preparing its audit letter for him.
What “Barb” said at 5:35 PM 18 November 2014.
DBQ, Is $500/hr. JT’s fee? That’s a VERY fair fee if it is.
LeeJ, exactly and it would bring up the precedence set by Ronald Reagan and GW Bush in deferred deportation Executive Orders of their own.
Tom Petersen said…
Through everyone out of office and start over with representatives that can work together.
Force a change in the House and the Senate “rules”, by law if necessary, and make very bill that is vetted and passed out of committee be sent to the floor for an up/down vote. No exceptions. Let leadership in the Congress make recommendations, but allow an up down vote, on everything vetted in committee and passed out. Period.
Do the above and what we have now will be relevant once again…
What we have now is nothing but an unreasonable bottleneck that denies our total representation to vote up or down. A travesty. If I am wrong on this, someone please correct me, with citations for back up. Unlike some, I will listen. Listening is the key to any formation of opinion.
I applaud you Prof. Turley. It is about time this congress took action and there is no one better than you to help bring the Country back in balance. The gradual erosion of our Constitution has been ongoing for several decades now and we merge blessings that you and the House reign victorious and the gradual loss of power by the House and Senate will be restored with more restraint placed on the Executive Branch to stop the usurping of power. We do not have a Dictatorship or a King, we have a Constitution and three branches of Government that should continue as it was meant to function.
Bless you for consenting to being a major part of such an welcome Constitutional challenge. We know you will give it your best efforts and pray for your success.
A very grateful …Thank you!
We need many more Constitutional attorneys like Jonathan Turley. Kudos for taking a stand for Constitution. This is not about D vs. R. or the first Black president. It is about preserving the separation of powers.
@ Squeeky
You can’t sue for something that hasn’t happened yet. There needs to be damages. You aren’t damaged by some bozo making vague threats. Damages and disparate treatment can be demonstrated by Obama’s unconstitutional actions.
I’m just guessing but since the House of Representatives is suing, they are the damaged party.
People keep confusing the like or dislike of the ACA as being the issue. That isn’t it. It is the unconstitutional way in which it has been implemented and the changing of the law by the Executive Branch, circumventing the Legislative.
Squeeky they don’t want that because it would bring up the fact that Boeher refused to bring up for a vote the bipartisan bill on immigration sent to the House
People who are complaining about $500 an hour have obviously not been involved in any serious legal battles. Chump change for a big firm.
Your clients do not come before the court with clean hands. Thus, the suit is frivolous and should be summarily dismissed!
JT’s bill should be public record.
I believe both Tom Robinson and Boehner have busted up a chifferobe.
I think Prof.Turley should find a way to add the upcoming immigration power grab to the suit. That is something that would resonate more with the American people than some obscure-a$$ provisions of Obamacare. Plus, it is a more extreme example of King Obama which SCOTUS is more likely to hear. Plus, this would blunt the main stream press in their efforts to smear Republicans because every time they denigrated the lawsuit, they would have to mention that it is over immigration.
Without that, my personal opinion is the lawsuit is doomed either judicially and/or politically.
Squeeky Fromm
Girl Reporter
As I’ve posted in other threads on this subject, Boehner’s lawsuit likely can be assured of standing by joining an individual employer of 100+ employees who claims particular harm due to Obama’s unilateral changes. I have little doubt that Boehner and the GOP have the necessary resources to find a DC employer of 100+ employees who would be willing to join the lawsuit as a party plaintiff in the US District Court in DC.
I certainly think that Professor Turley is smart enough to realize this and so will quash the 0bamacare apologists’ mantra (seldom heard of late) that the standing issue would instantly doom any lawsuit.
And Michael some of the right wing commenters here believe in free speech as long as it is their own. Any other voice is to be mocked, or worse.
leejcaroll – to paraphrase the head of the BBC, some people deserve to be mocked.