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
Marching off with Orly….
If either branch of Congress, meaning House or Senate, or both, files a suit in federal court then I will formulate my Motion To Dismiss on standing to sue grounds and submit it here for review. I think I will ask that New Yorkie guy who represents Ver Mont to be a person who moves to intervene and to dismiss the suit as a member of Congress who disagrees with the claims made, on the grounds that his co fellows in Congress do not represent his views. I think his name is Bernie Sanders and he grew up in Brooklyn by now hails from Vermont. If any of you readers live in Vermont I am wondering if you could ask Bernie to join in the suit. Meanwhile, we in North Carolina who walk on four paws are forming a Dog Party and are searching our ranks for a candidate for a Senate Seat here now that Kay Hagan was defeated by the Koch Brothers.
Onward bitter PUMAs…
Squeeky, blah blah blah. That’s what your last comment sounded like. I’m pretty sure you can do better than that. Tell me why it took you so long to figure out Obama was a citizen and tell me why you’re voting for Hillary? Or perhaps you forgot she is a Democrat.
Annie – I do not understand this brain fa*t that squeeky is having about Hillary but it may be her uterus voting.
Can house combine the amnesty EO and ACA implementation lawsuit?
@Annie
No, you don’t have doubts about whether Republicans love this country. You believe with all the fervor of a Holy Roller fundamentalist that Republicans absolutely hate America which is why you have never voted for a Republican not once in your life. And why you are sooo partisan that you can’t see straight. Or, think straight. Perhaps you looked into the abyss of fundamentalism sooo much, that fundamentalism looked into you???
Onward Democratic Soldiers…
Squeeky Fromm
Girl Reporter
They were more than willing to harm it with the governmental shut down…
Yeah! Never forget that those evil Republicans closed off the public’s access to the Lincoln Memorial!
Sandi, I have my serious doubts about the “love” the House holds for this country. They were more than willing to harm it with the governmental shut down and again are making similar noises now if they don’t get what they want. I’m glad you feel sure they do, but I can’t agree with you. As for the media, yes we can agree on asking them to be honest and clean.
Sandi, you think court will accept this lawsuit, have they not refused to take such lawsuits in the past?
Annie, the members of next year’s Congress love this country as much as you. Republicans are not evil. If only Obama respected our Constitution. If only Obama didn’t lie to the American people so much. If only Obama met with Congress instead of sitting in the Oval Office digging in his heels. This is where we are. I think Professor Turley is the best person to represent the people at this point. Join with me in asking our media to keep this honest and clean.
Thank you! Your love for this country has put you in a difficult situation. You voted for Obama and agreed with a lot of his policies. Thank you for putting our Constitution first.
Yes, the House has made a wise choice. Thank you, Mr Turley. ON LIBERTY!
I think Romney just did not know how to deal with someone who has the personality traits that our president exhibits. In the 21st century a candidate should have the opponent’s videos analyzed through by a professional. How one uses hand gestures, raises eye brows, changes tone of voice, thrusts tongue under lip, walks, smiles (mocks) , laughs while playing golf minutes after giving a speech about beheading of a human, etc., can tell a lot about what is behind the eyeballs, and hence what he/she would say/do in a debate setting when confronted. Maybe they do have such professionals in the campaign, but maybe not.
Observer,
At least, if you’re going to call out your opponent on a statement, have the statement transcript ready for reference. I guess it had been a while since Romney had impeached a witness in court.
Observer,
I agree that in broader scope than the President’s 12SEP12 remarks that were the focus in the 2nd presidential debate, the Obama administration’s position on the Benghazi consulate attack was clear.
However, I don’t agree that within the context of the 2nd presidential debate, Governor Romney reasonably could have done much more than he did unless he broke form with the debate, and sacrified other parts or even the remainder of his night’s agenda in a risky pursuit for a questionable pay-off.
Whether the Romney campaign should have done more with the issue outside of the debate … maybe. That falls more to setting the frame via trend-setting media and pundits elaborating the issue for the public, but perhaps the GOP, Romney, and his campaign could have worked that area better, assuming the cooperation of the trend-setting media and pundits.
as far as Crowley, Romney could have shown the people that he cannot be confused or derailed by a character like her. I hope that the future republican candidate does not go into a debate expecting the moderator to be behaving decently. After what I have seen over the last few years, I will be shocked if a MSM person will behave reasonable with a republican in a debate.
really…: “I do not understand “congratulations” comments here, as JT will have to deal with character assassination and ridicule from the WH and the MSM.”
It’s not the Mega-Milliions lottery, but it is an opportunity for Professor Turley to make a profound difference at the heart of his profession and passion. He will have adversaries inside and outside the courtroom.
Eric, he was specifically asked in VIEW and he did not say what it was. Even in the UN he was apologizing to the world about our constitution, that we have freedom of expression and that he did not have anything to do with the “video”.
Romney had so much to totally crush his arrogance, but he failed miserably, and ended up getting scolded by him (that he was “offended”).
Observer,
See the transcript of the 2nd presidential debate of 16OCT12:
http://www.foxnews.com/politics/2012/10/16/transcript-second-presidential-debate/
I wouldn’t say Governor Romney “chickened out”. Romney made his point within the window. He just didn’t override the moderater, Candy Crowley, break the debate format to expand the window, and possibly sacrifice other parts of his platform that night in order to corner the President on the point in a single-minded dogged pursuit as some wish Romney had. I also suspect Romney didn’t have with him a transcript of the President’s remarks.
Annie: “… because he knew he had nothing.”
I disagree. Governor Romney had something.
In his 12SEP12 remarks, President Obama said a form of ‘attack’ 8 times and ‘act’ twice in specific reference to the 11SEP12 attack on the Benghazi consulate. He said the word ‘terror’ once in a non-specific reference to “acts of terror”. He used different adjectives, such as ‘terrible’, ‘shocking, and ‘brutal’, in combination with ‘attack’ or ‘act’ where he could have used ‘terror’ to convey an explicit characterization of a terrorist attack. Instead, Obama’s one use of ‘terror’ was in a circumspect construction that perhaps implied the attack on the Benghazi consulate was a terrorist attack or was simply a general statement of post-9/11 resolve. He even referred to the “terrible act” following “acts of terror”, which reinforced that Obama was perhaps implying that it was a terrorist attack – or perhaps not.
See the transcript of “Remarks by the President on the Deaths of U.S. Embassy Staff in Libya”, 12SEP12:
http://www.whitehouse.gov/the-press-office/2012/09/12/remarks-president-deaths-us-embassy-staff-libya
Excerpt:
At the least, Crowley’s assertion that “[President Obama] did call it an act of terror” was an overstatement of an inference.