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
Professor Turley
Please comment on the New Republic article “Obama Immigration Executive Action: Why It Will Be Legal” by Erwin Chemerinski and Sam Kleiner (link below)
I’m not a lawyer but there appears to be an undefined dividing line between prosecutorial discretion and executive overreach. My take is that there is a limit to prosecutorial discretion; that the president can choose not to deport a narrowly defined group of people but doing the same for nearly five million may be too much. If this was part of the House lawsuit and you were the judge, how would you write the decision regarding that limit (if, indeed I’m right that there is a limit).
http://www.newrepublic.com/article/120328/obama-immigration-executive-action-why-it-will-be-legal
Regards
Richard
Possibly one branch of government can sue another. The Executive branch stands on two feet, that of the President. The Supreme Court is a Court of Nine and a stitch in time saves nine. The Congress consists of two parts House and Senate and each part is made up of different folks of different strokes. One party does not speak for all in either body. An independent member might disagree with either party. Some RepubliCon might be of a belief that the Commander in Chief has broader authority than some of his other party members. Yet a majority of RepubliCons can sue on behalf of all RepubliCons, all Democrats and any Independents. Or can they? I don’t think so. What if Ayn Rand intervenes in the suit and disagrees? I am sorry, I meant her son, Rand Paul. Or what if the case is in Court and the Japanese bomb Pearl Harbor? Is the President going to have to get permission from a court before he goes to Congress to ask for a Declaration of War? FDR would have been confused. Or if the Saudi box cutting terrorists boarded a plane and hijacked it, could the Executive, like Bush did, unilaterally let all Bin Laden family members flee the country? There is a lot going on here.
A second obstacle to the lawsuit is the half arse defense with is similar to Standing To Sue. Under Half Arse the judge must determine if there is enough substance to the theory of constitutional attack to survive summary dismissal. Without a full arse there can be no artFay. Consult your Pig Latin dictionary.
To achieve Standing To Sue a party must have two feet on the ground. In this case the Congress has one foot, the RepubliCon foot, and the Democrat foot is opposed. Therefore, no standing to sue. Simple concept really. That suit aint going anywhere except perhaps to New York for a dry cleaning.
BarkinDog – the Constitution does not anticipate a two or more party system. It does have a three-part government. One part can sue the other part and have before. And maybe they will go district shopping.
While I support President Obama on most things,I think he’s done a remarkable job considering all the race based opposition he has encountered,I’m fully behind you in this case.
Oh, this will get more rage from the Left than when radical left wing feminist attorney Lynne Stewart defended the blind sheik, the muslim terrorist who first tried to destroy the World Trade Center in 1996 and eventually joined his terrorist cabal–now serving 10 years in federal penitentiary.
Mr. Turley, thank you. There is one thing that I think needs to be done and that is to define the limits of Executive Power. Right now, that’s all the Constitution says, i.e. Executive Power, and that’s been interpreted to mean ‘anything goes.’ The interpretation of that one phrase has resulted in Executive Orders being the form that presidents have used to override Congressional authority to create and pass legislation legally and in compliance with the Constitution. Equality between the three branches of our government is what the founding fathers wanted. Executive Orders are tantamount to creating a dictatorship. There needs to be an Amendment dedicated to defining the term Executive Power.
Anyway, keep up the good work!
George Phelps
League City, Texas
Setting ego and blind rage for their country aside, most attorneys would do the same.
Nice man
push back the abomination that is the Obama nation.
What a pack of snivelers and boot lickers these commenters are! I stopped coming to this site months ago and it’s just gotten worse. Chuckles Turley suddenly has principles and wants to stop the avalanche of health care for the under-served. Turley, next time just stand on the street corner and sell yourself that way. Here is some LAtin for you … Te Ipsum.
R MARK REASBECK …. I am interested and you can send via email to aridog@comcast.net, the same address as in my profile. My actual name is Richard Thompson, and my ISP will accept any document 10 Megabytes or less. Sorry, I ceased my FTP site subscription for mega documents. However, broken up in to pieces, if necessary, (if only text, it won’t be) I can still receive it.
Paul…speaking as a former military and federal dude, I can attest that nothing enables corruption more than continuous CR’s. Nothing. It is the curse of anyone in public service who takes it literally…to serve the public. We may very be beyond recovery in terms of a genuine annual budget. I feel to vomit.
yes, even Manson deserved counsel …..
when will this happen and in which court?