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
For a good laugh, check out who tortmaster follows on Twitter.
I think that if we discuss some of the defenses which will be presented in this litigation that we can all be better informed and perhaps give JT some guidance. As a guide dog I am put on this Earth to give guidance to humans and not to criticize good folks. On the other hand if we debate issues like Standing to Sue here on the blog we might give some folks on the other side some ideas and undercut the job that the plaintiffs and JT are doing. So there fore I will henceforth with hold my bark on this topic. And if I do get hired by some guy named Bernie like he said he was gonna do on the phone then I will get off the blog entirely.
Darren Smith,
I disagree. As you said, Professor Turley’s post was an introductory public notice – “one of the declarations of a shot across the bow”.
Yet Professor Turley’s original post, necessarily, was light on legal substance past the introduction. OP normally sets guideposts to frame the subsequent discussion. Without those guideposts, commenters – including partisan lay persons with agenda – have imputed their own opening take on the topic.
As such, the comments taking off from the OP have also been ‘declarations of a shot across the bow’ introducing the public political context of the debate. I believe the comments accurately represent the various character of the public’s entry to an esoteric topic, including and especially the purposeful partisan views that are adverse to Professor Turley’s counsel. The “base” exchanges are how competitive tribally zealous partisans talk.
Hopefully, with Professor Turley constrained, he will invite likeminded guest or guests who know Constitutional law, know how to teach it to lay people (1Ls are lay people), and will post updates here at each step with educational substantive insight on the case. As the posts grow more focused, the comments should follow the substance and focus on the guideposts.
The public political context, however disappointing and frustrating it is at first take, is what it is. Better to accept that it is and understand it than to deny it. Then change it.
I believe the productive pedagogical strategy at this opening stage is explain basic but otherwise esoteric facts and correct basic factual errors. For example, many commenters protesting Professor Turley’s counsel have claimed an equivalence between the ACA controversy and Patriot Act controversy – explain the distinction. Understand that this is an esoteric topic that invites tribally zealous partisans to manipulate the public’s ignorance to spin the politics. To paraphrase Senator Moynihan, recognize that while people are entitled to their own opinions, they are not entitled to their own facts.
At this point, the most important – and productive – action to set the course for the discussion and debate ahead is to lay the foundation with factually correct premises and try to preempt misleading false premises.
Correct premises matter – a lot. For example, in the public political controversy over Operation Iraqi Freedom, the prevalent false narrative against OIF is based on the false premise that the burden of proof was on the US and UN to prove Iraqi possession matched the pre-war intelligence estimates when, in fact, the entire burden of proof was on Saddam to prove full compliance with the Gulf War ceasefire UNSC resolutions. That one simple burden-shifting mutation corrupted the whole public political context of the Iraq enforcement and caused real compounding harms, even though the primary sources for the law and policy of the Gulf War ceasefire, easily accessible for the public, plainly show the decision for OIF was right on the law and justified on the policy.
So, we can’t assume the public will come to the basic facts on their own when tribally zealous partisans are purposefully trying to manipulate them. Don’t just decry what you see here – correct it. Correct it now before false premises metastasize out of control. Lay a proper foundation for the public debate and discussion ahead.
Squeeky you write upthread to another poster: “My goodness, you are in your 60′s and have never voted for a Republican one single time in your life in any election, and you priss around like you are the epitome of an open minded and tolerant person??? How does somebody go through life and NEVER vote for anybody but a Democrat and then have the nerve to pretend that they are open-minded and reasonable???
The two are not mutually exclusive. One can be open minded and tolerant and decide that on the candidate and their positions as opposed to party. One example immediately comes to mind. Bob Casey (Pa sen (D) is anti-choice. One has to be open minded to decide to vote for him based on position(s) that are antithetical to “party” line. (Oh and btw I have voted for a republican once or twice in my life, and regretted at least the first one). It seems dems are more willing to vote for those who do not follow the party script as opposed to repubs who reportedly tend to vote for party rather then person/positions
http://www.politico.com/story/2014/11/rick-perry-barack-obama-113033.html “BOCA RATON, Fla. — Texas Gov. Rick Perry said the Lone Star State might sue Barack Obama’s administration over the president’s planned executive order to grant relief to as many as 5 million undocumented immigrants.
“I think that’s probably a very real possibility,” Perry said during a panel here at the Republican Governors Association’s annual meeting.
Perry, who is considering another presidential bid in 2016, said the cost of illegal immigration is “extraordinary.” He said his state spends $12 million a month on securing the border.
Perry remarked that state Attorney General Greg Abbott, who was recently elected governor, has described his current job like this: “I go to the office, I sue Obama and I go home.”
Read more: http://www.politico.com/story/2014/11/rick-perry-barack-obama-113033.html#ixzz3JcfVp9SJ Old crooked Perry wants in on the action……..
Darren, without inciting drama, let me say that I hope as many people are drawn to this article as possible so that some small percentage may be awakened from their dreams of utopia. Perhaps a few will set aside the race card and the obsession with Fox News and learn that what the Professor is trying to do is preempt the next dictatorship from evolving out of this one. Because the next guy to try trampling the Constitution won’t be playing golf as much and might really give you change you will — by force — believe in. I pray that he prevails.
He did not testify in court. My god and you call yourself tortmaster. Please.
Sammy – the facts are not going to get in the way of a good argument.
Mr. Turley, please explain how you are not in violation of Rules 3.6 and 3.7 of the Professional Rules of Conduct. You have provided seven ponderously long paragraphs of extrajudicial statements that not only have a likelihood of being publicly disseminated, but you disseminated them yourself.
Additionally, you state, in your lengthy extrajudicial statements, the following: “After I testified earlier on this lawsuit….” Not only are you a potential witness in the lawsuit, you have already been a witness for “this lawsuit.” That’s a violation of Rule 3.7.
I hope your “[T]he House ‘had me at hello'” becomes as infamous as David Gregory dancing to Karl Rove’s rap. Pretty much the same thing.
So what does the leftist Progressives on here have to say about this? Oh wait I know…”lol Fox news”
amiright?
It’s heartening to know that there are persons of your integrity and commitment to principle, Professor Turley. I’ve never forgotten a frequent saying of one of my law school professors, almost forty years ago: “The United States Constitution is not a technicality”.
Darren, what attracted me to this site was Professor Turley. His emotional plea at some hearings. Something had to be done or our country might have lost all respect for our Constitution. I don’t think he wanted to be the one, but thank God he did. You don’t have to be a lawyer to understand many of the things discussed. I like being able to let the lawyers know what a citizen thinks. It has been interesting and I’ve learned a great deal. I’ve also seen some of our worst experiences. I don’t have to look at murderers, and seeing so many young black men in their 20’s with no life in their eyes. The racial tension has increased so much and Sharpton and Jackson aren’t the leaders to help that. Thomas Sowell and Walter Williams have spoken out, but never heard. I know white people thought a black President would solve the problem. That he would speak to young blacks and challenge them to follow in his footsteps. Now is too late. He doesn’t command the respect he had when first elected. But I still live in the greatest country and will always be grateful for that.
Darren, I think it must be very painful for some people to see that the administration, that they had almost worshiped blindly , can violate the constitution, can be deceptive if not openly lying. I think they have a lot of emotional investment, and some of the comments here reflect that.
@DarrenSmith
If you think my exorcism comment was over the top, please feel free to delete it. I probably shouldn’t have accused Annie of being possessed. But I had just watched that movie. . .
Squeeky Fromm
Girl Reporter
Professor Turley, I am thrilled to know you have taken on the case of Presidential executive power. Your knowledge is profound, evidence by the ease of speaking your passions, and the depth to which you address issues. Whenever I see you commenting on a news show, I stop and listen. It is a real treat to hear your eloquent, pleasant, voice cut right to the chase and put forth logical, common sense EASY interpretations of the Constitution, as I think they were meant to be. Those trying to squirrel things around seem to make long, dragged out screwy explanations that are a puff of air.
Your calm and inner peace are just perfect to address the various forums in which you “hold court”. 🙂
You are a great example of the right sensibilities trumping partisanship. If each member of the House, Senate, Judicial Branch and Executive Branch cared as much about the preservation of the seemingly timeless U.S. Constitution we would not be in such a pickle…..And there are a lot of pickles in the jar of the current administration. 🙂
The topic of this article could set some historic precedents for the system of government we have with consequences for all three branches of government. The sad part is that we are at the beginning of this process and this article was one of the declarations of a shot across the bow in that numerous main stream news sites quoted and linked what is here to their readership, and yet despite all of that rather than continue with a discussion of this measure we see once again there is this return to bickering about individuals here in such shallow and at best superficial taunts and petty musings of the same interpersonal conflicts that has gone on for months. It truly diminishes what our host and numerous others who have the vision to see beyond such baseness in their attempt try to focus energies on absolutely more important matters.
In the grand scheme of things, there have been great numbers of individuals who have been recently drawn to this website having never visited here previously. I can assure that none of those individuals are interested in the drama that I have mentioned. It serves no greater purpose, and I say without doubt the world is not interested.
What is interesting to those tens of thousands of persons who were attracted to this article was the subject matter of the topic and that they desire to inform themselves as to its elements to further read matters of potentially great importance. It is not to have to wade through the morass of bantering comments to find among these a few islands of insight and wisdom. After over five hundred comments it does become difficult to find the gems amongst.
What it does however do is to create in this portion of the blog diminishment, especially of those who bring mostly irrelevances to the discussion.
Furthermore, our host has to waste time attending to the matter when he should be spending his limited time working on great things while at the same time being a father, a husband, and much more. So if there is only one thing that those who for some reason choose to incite drama could take away from this comment, it would be to show some respect for those that have a vision to make a difference and not act like unwelcome guests when invited into their homes.
The comment section offers individuals to have a means to comment and be a part of the discussion to voice their concerns or perspective. And that is certainly worthwhile and they also deserve some credit and respect.
Alan, can you be a little more clear about how you really feel?
🙂
Wow Professor Turley. You have just proven that sellouts are still in vogue. Cheers to lining your pocket in the name of your faux indignation in the form of harming the Republic. And to think I used to like you.
@Annie
Uh, just FWIW, Hillary was once a Goldwater Republican.
Plus, no I am not mad about at you or anything. I know it is your inner demon that is speaking. . .
Squeeky Fromm
Girl Reporter