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
I do not understand “congratulations” comments here, as JT will have to deal with character assassination and ridicule from the WH and the MSM. Wishing him luck is more in order. Why cant this lawsuit be combined with other unlawful things that have been done, as well.
Romney didn’t chicken out, he didn’t want to make a fool of himself, because he knew he had nothing.
It is really suffocating to see the slanted headlines and comments on Huff Post, I now avoid subjecting myself to that torture. I canceled my NYT subscription after how they treated Benghazi and then I got a call from them asking about the reason, so I told them that just by watching speeches of the president I know one thing that he has been misleading the country, and for NYT to support him despite his behavior is just too much for me to handle. Like JT, I had supported this guy in 2008, what a big mistake, however, it was not that I had liked him, it was because the Republican ticket, that i disliked more. Romney could have confronted him about his lies on Benghazi, but he chickened out in the debate, that was a big disappointment.
Of course you did Olly.
Once I stopped believing everything reported on the news and started to fact check; I found the most reliable source was FoxNews.
You know I used to not watch FoxNews a few years ago, as I felt it was too one-sided, I finally realized after watching the other channels that actually there is no other side, except for seeing self righteous grandiose anchors but without the truth on their side. The only channel that found Benghazi situation very problematic was Benghazi and since then I have a lot of respect for everyone at FoxNews, they are doing public service. Something has to be done to bring better journalists in other channels as well. I dont know what needs to be done , though.
@Observer
Well, you wouldn’t want the press to be “disrespectful to the President”, now would you???
https://www.youtube.com/watch?v=nIVKPLDOr3o
Squeeky Fromm
Girl Reporter
I saw “journalists” still dismissive of things that any honest and competent journalist will be very serious about exploring. We are supposed to have a free press, but what do you do when the “free” press is really full of fools, to put it mildly..?
An honorable man. Thank you sir.
YAY!!!!!
I’ve read you for years, Mr. Turley. The House has made a wise choice. Best of luck!
Interesting discussion on MSNBC about Prof.Turley representing the House, now.
In my opinion, a necessary first step must be the elimination of the power to prevent bills, vetted and sent out by the applicable committee, to be bottlenecked on a Majority Leader’s or Speaker’s desk. Once out of committee the rule should be a mandatory up or down vote by the entire House or Senate. Do that and every Congress will do more and surprise you. No need to herd cats, so to speak….which is what the leadership in Congress does now, because it is impossible to herd cats, so they deny the vote.
The next step needs to be a mandatory passage of a formal annual budget (we have not had one for 6 years now) before any other bills are considered, period. Continuing Resolutions (CR’s) are the antithesis of a functioning legislative body. I’d be in favor of docking all Congressional pay, both representatives and staff, if a formal annual budget is not passed by 01 October of every year. Let them pay for their malfeasance. Literally. In fact, I’d make that by 10 July of the fiscal year extant, for the next year, just to be sure one is passed and reduce the drama.
I say this as a former soldier, then military “Fed,” who busted his civil service butt to assure our executive budget request was submitted by April of any given year. After a while when you are ignored you lose interest. We cannot afford that anymore. It relieves Congress of its primary responsibility … authorization of funding. Do that and you get the mess we have today.
Finally, I am convinced that any and all appropriated fund diversions be ratified by the Congress….before any diversion. Technically, 48 CFR requires a Congressional line item for any expenditure, or diversion, over $700,000. In Michigan we have one particular Congresswoman who will tear you to pieces if you try to modify or divert the project or program funding in her District. If you try she will be on the phone to you immediately, and back it up by email, plus certified mail. Nobody messes with Candice Miller’s district funding. Trust me…and when you are a simple civil servant (GS-01 thru GS-15) you have no more than 72 hours to explain yourself. Would that the rest of governance be that clear.
I respect Candice Miller (R-MI-Macomb country area) even when I disagree with her….just as I do John Conyers (D-MI-Detroit). They do what they were/are “hired” to do…represent their constituency. BTW, she has only a high school diploma, no fancy Ivy League college degrees…but she knows her job and does it very well.
Please delete my last post with the link; I’m too grubered to know how to work my anti-gruber phone.
http://m.townhall.com/political-cartoons/2014/11/19/125019
Forget the previous administration; what about the next? Would all the defenders of this President be equally defensive if the next President was a Tea Party Republican?
You’re gut – reaction to that will be the tell to whether your objection is based on constitutional principles or some other motivation.
Thank you Professor Turley. Though we may not agree politically on most things … we do agree on protecting the integrity of the Constitution from those who work to eviscerate it.
I think the GOP may actually have a card they are not revealing until Obama actually goes through with this most egregious abuse of power he’s dared yet. I think they may have enough Democrats agreeing, although not publicly, that they will vote to convict this Emperor as soon as he crosses the bright yellow line. The House can have already written up the articles of impeachment. There are a lot of Democrats who saw Obama drag down a lot of the colleagues from their side of the aisle in the midterms, and they don’t want to go down in 2016. He stabbed Congressional dems in the back many times over, and they have nothing to lose by throwing him under his very own bus.
> “It’s not that congress didn’t ratify a wish list. It’s that the 111th congress set a record for filibusters and then broke that record in the 112th. Never has congress stood in the way of so many basic appointments and general legislation in yours or my lifetime.”
Dan, you ignorant slut, please indicate what Article of the Constitution allows the President, nay FORCES the President to issue executive orders to create new laws when the Congress refuses to send him such bills to sign.
I’m waiting!
I’m not at all sure about standing. Does the majority party in the House have standing to sue the president over enforcement decisions in a law? Is it, let alone any of them individually, harmed? Does it actually have a stake in the outcome beyond what an ordinary citizen has? And even if they might, and that’s a big question, have jurisdiction, ought courts intervene? The political question doctrine serves an important purpose in preserving the constitutional balance — and BarkinDog has nailed it. No matter how put out Prof. Turley is with this president, isn’t asking a court to direct the actions of the executive a far worse remedy than the disease? You think an imperial presidency is bad, how about an unelected, life-term, imperial Court? The sole remedy prescribed by the constitution for misbehavior by the executive is impeachment. If he feels it’s warranted, Prof. Turley should be working to get articles of impeachment passed, not dallying with this extraconstitutional exercise of Court authority.