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 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
thank god for republican party, fox news and JT, otherwise tragedies and incompetence of benghazi , lawless behavior , etc, would have been totally ignored by the MSM, and the narcissists would have ruined everything to the point of no return.
I used to look forward to your comments on tv. I’m sorry to see that your joining this effort.. Utter nonsense and more Republican waste of time and money.
Is this Mr. Turley’s most commented on post? Why yes it is! That tells you something right there, doesn’t it.
Or a GNPK, STUPID!!
Squeeky, It’s known as a Gruber Notice of Premium Hike.
FWIW, this is an Obamacare notice for 2015. The premium doubled from $281 to $556:
http://www.zerohedge.com/sites/default/files/images/user5/imageroot/2014/11/insurance%20policy.jpg
http://www.zerohedge.com/news/2014-11-18/one-readers-shocked-response-upon-learning-his-health-insurance-cost-just-doubled
Squeeky Fromm
Girl Reporter
May you prevail. (I didn’t get the changed I hoped for either.)
What are your thoughts on the unilateral immigration plan? What a mess!
Congratulations!! It is very pleasing and hopeful to know that you are there to speak on behalf of the Constitution. We the People…… Thank you
Mr. Turley, Since 2009, I have believed that the EO is obama’s most dangerous weapon. I have researched and studied this “get out of jail” card and have put together a 50 page document with my findings and precedents that I believe will shut down obama’s march to illegal amnesty. It’s in PDF form. if you are interested in it I would be happy to send it to you under a different venue.
Mark – JTs email address is available at the homepage.
Leaving aside the expected and somewhat boring sychophancy from your usual bloviators, to represent and amplify the hate-fueled regressive right in the much ballyhooed suit is probably a good career move for you Jonathan.
This latest ploy seems to differ very little from your previous causes célèbres of ploygamy and Bill Clintons impeachment. Guaranteed exposure being the common thread.
All anyone that supports this move needs, to know that this is exactly the principled decision, is to see how much vitriol is generated in response. I would have been concerned if they had remained silent but all of this is as expected. 🙂
so some people are upset that why Bush/Cheyne were not tried. I guess there should be another lawsuit against the present administration for obstructing justice, as president had told us to look forward.
Good luck. As a layman, I struggle to understand why congress lets the executive branch claim more power for itself with each president. It just seems to me that their own motivated self interest should make a good representative want to retain all the powers the founders intended their branch of government to have. I don’t get why congress under both parties defers to a single person lacking the “individual mandate” 😉 to represent their specific state or district.
magginkat: “when Bush/Cheney were walking all over the Constitution and taking us into illegal occupations of other countries taking us into illegal occupations of other countries”
Your premise is incorrect. The US-led post-war occupations in Iraq and Afghanistan have been legal.
“magginkat
Since you claim to be so concerned about the Constitution and what President Obama may or may not be doing that angers you and the right wingers in Congress I am thoroughly puzzled as to you did not seem to support such action when Bush/Cheney were walking all over the Constitution and taking us into illegal occupations of other countries, etc.? Were you so disappointed that McCain and his VP pick didn’t defeat Pres. Obama the second time We the People elected him that now you have decided to join the rabid ones to take down the black man in the White House?”
Sorry to be blunt, but that is one rude, and idiotic, comment. If the Dem house had asked him back then, he probably would have represented them too. As for all your other nonsense, it’s not worth responding to.
I have some questions regarding one of the three branches of government suing another. Could the Executive sue Congress when they will not vote on nominations to fill the Judicial Branch? That, would be a good lawsuit for the Judicial Branch to entertain. How about the Executive suing the Judicial Branch when they refuse to recognize a habeas petition due to a civil war going on? What if Bush had sued Congress to fund Gitmo? What if Bush had sued Congress for failing to pass a budget to pay for war in Iraq? What if Obama asked for a Declaration of War against ISIS and Congress turned it down? Can Obama go bomb Iran? ISIS is in Iran?
On the issue before Turley now I don’t see that Executive action has been adverse to the Constitutional power or beyond the prerogative of a President.
Standing to sue will be the crunch.
Dust Bunny Queen: “Eric….but you missed the point of my response to whatsherface up line, when she was whining that no one sued Bush for the Patriot Act.”
I got your point that Maha counter-offered the Patriot Act in rebuke of Prof Turley taking this case, despite that her own comment explains why the Patriot Act is inapposite: “You said that President Bush and the congress had decimated the constitution then.”
When I said to Maha, “The Patriot Act wouldn’t fit this lawsuit,” I was responding along the the same line, although more vaguely than you.
Rather, my comment was piggybacking on your comment in order to expand on your prior statement that “Bush did not make the Patriot Act out of whole cloth himself.”
I said, “The counter-terror tools authorized in the Patriot Act didn’t originate there” and cited to President Clinton’s near-Presidency-long struggle with al Qaeda.
More precisely, Public Law 107-56, the USA Patriot Act, was a revival of legislation that President Clinton transmitted to Congress in 1995: the Omnibus Counterterrorism Act of 1995 (10FEB95) and Antiterrorism Amendments Act of 1995 (15MAY95).
Eventually, a version of the 2 acts that was watered-down by Congress over Clinton’s objections passed as Public Law 104-132, Antiterrorism and Effective Death Penalty Act of 1996 (… recently cited here as part of the legal basis of the President’s standing counter-terror authority to combat ISIS).
Republicans and rank-and-file Democrats who believed President Obama would roll back the Patriot Act should have been allayed of that notion as soon as Obama picked Vice-President Biden to be his running mate.
Who was the lead sponsor of the Omnibus Counterterrorism Act of 1995 transmitted from President Clinton to Congress in February 1995? Senator Joe Biden (D-DE). In fact, in 2001, then-Senator Biden said during deliberations of the Patriot Act, “I drafted a terrorism bill after the Oklahoma City bombing. And the bill John Ashcroft sent up was my bill.”
So you’re correct: The Patriot Act carries no Constitutional controversy, at least in terms of federal balance of powers. It’s a product of Legislative and Executive collaboration and Democrat and Republican collaboration. If anything, the passage of the Patriot Act after 9/11 was a tacit mea culpa by Republicans who had watered down President Clinton and Senator Biden’s Omnibus Counterterrorism Act of 1995.
I also piggybacked on your comment to repeat a constant theme in my explanations of the laws and policies of Operation Iraqi Freedom and the War on Terror: the best Presidential source for understanding the bases of the Iraq mission and our counter-terror fight isn’t President Bush – it’s President Clinton.
For rank-and-file Democrats who worked against President Bush and Republican officials in the sincere belief that Democrat control of government would correct course on the Patriot Act, it was a fool’s errand from the beginning.
When the Patriot Act was signed into law, President Bush was signing President Clinton’s bill.