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
PUMA? I think it is a bunch of tired old wizened feminists who avidly wanted Hillary (who fits into that description) to run for President. Sort of a play on Cougars, which are older women who want to try to extend their youth by having sex with younger men. 🙂
But what does PUMA stand for ?
There are 2 true candidates, a Republican and a Democrat. None of the rest have any chance at being elected. So you decide which candidate is closest to your views. Or pick the party you want in power, and vote the whole ticket. By voting Green you have no representation at all. Voting Green, principled or not, is a worthless vote. Libertarians are the biggest problem for me, voting Libertariah gave us Obama, twice. So, do you want your vote to mean something? Professor Truley is doing whatever he can to get our Constitution back on top. Because of his principles, yes. That is not a vote. I think he takes his vote very seriously.
It seems I wasn’t being clear on what I was referring to as the banter.
I am referring to the personal insults and levels of incivility that our host has constantly reminded others not to engage in, for which he has taken action against by means of deleting such comments, not general commentary.
I fixed myself years ago when I was your age..
It didn’t stick.
Sandi, sometimes principle is more important than winning, isn’t that a part of Professor Turley involving himself in this lawsuit? I’m pretty sure he knows there is a chance he won’t win this case, if it even gets heard. Professor Turley puts principle first, does he not?
Annie, the Green Party can never win. Why waste your vote? As to someone’s comment about Professor Turley’s welfare working with Congress and how terrible that is. I look forward to his comments, however long it takes, because I think you’ll learn about the hard work and long hours. There are several lawyers, of course, but also a retired judge. Former prosecutors who are very true to the law. The Democrats will still be yelling racism and boycott. But I think the seriousness of this action will teach us all a lesson when heard in court. Oh, but no cameras! Will we at least be able to listen as we did Bush/Gore?
Bush/Gore was “fast tracked” to get to SCOTUS as soon as possible. Would “fast tracking” apply here? Millions of people are at risk. This can’t wait two years. Will there be updates along the way? Will we be told all that is legal to tell? To me, this is the people vs. ACA, not just Congress.
Sandi – I am going to defend Annie on voting for the Green Party. I voted for Mickey Mouse in the last two Presidential elections. I know that Mickey was not going to win, he had not run much of a campaign, but it was my protest vote. It was the same as voting “None of the Above.” If nothing else, it is a statement vote.
http://en.m.wikipedia.org/wiki/People_United_Means_Action
Some of these women actually joined up with the Birther movement and other wacky conspiracies regarding Obama and even his wife.
A group of very bitter women who went nuts when Hillary didn’t get the Democratic nomination in 2008.
What’s PUMA?
Squeeky, I see you are having fun trying to prove I’m a “fundamentalist”. I find it amusing, not annoying as you might wish. However, since I know myself far better than you know me, I am secure in the knowledge that I am comprised of shades of grey, from my eyes to my hair to my philosophy in life. Quite different than your own absolutist leaning regarding abortion, black people, old people, gay people and Democratic people. I fixed myself years ago when I was your age, a sweet innocent “30ish”, LOL….oh my.
Annie – now I just have to ask. How did you “fix” yourself in your 30s?
@Annie
Gee, but you seem sooo extreme in your beliefs. Isn’t that what makes a fundamentalist??? The tenacity to which they assign to things in black and white??? Fundamentalist, heal thyself!
Squeeky Fromm
Girl Reporter
And Squeeky, you can’t tell me that Birthers and PUMAs aren’t fundamental in their belief in Hillary and her super powers (she is almost goddess like to them) and the myth that Obama was born elsewhere and is a usurper. Those people were whacked. I also see that you are itching to continue the argument from yesterday. You don’t want to risk annoying Darren again do you? We might get another paternalistic scolding for ‘defiling’ the holy of holies, the Turley comments section. 😉
Squeeky, I’ve voted for someone from the Green Party more than once. There are millions of people who have never voted for a Democrat or Republican every single time they vote. To most people, the Party platform means something. There are voters who vote based on who best would represent their interests. I have yet to find a Republican who would adequately represent my interests. Get it? Now tell me how Democrat Hillary and with her liberal stances on most issues would represent you, who appears to be quite conservative.
@Annie
You ADMITTED that you have never voted for a Republican not once ever in your entire life. That is your business, but when you then want to pose as an open-minded person, I find that to be hypocritical. I also find it to be a form of fundamentalist extremism. And, don’t you make it a point to preach to all of us about hypocrisy and fundamentalism???
Squeeky Fromm
Girl Reporter
Laudable act. But sadly now we get to see what will happen to a sane, sensible man in the maw of absurdity and blood lust i.e. Congress (and the courts, of course).
Squeeky, I find it odd to vote for someone who doesn’t represent one’s interests. Also you don’t know who I voted for in any given election, it’s actually none of your business. You don’t want me to comment again on how odd it is to vote for a Democrat Hillary when she doesn’t stand for one thing you do, do you? I am far less extreme in many of my positions than you seem to be, according to your own comments regarding homosexuals, old people and black people. I suggest you look inwards.
@nick ,
Just checked , among his followers is “racists for Obama” and he is following “Obama news network ” . Did not even know such thing exists 🙂
@leejcarrol
Like I also said upthread, “People go off the deep end on a lot of things.” I am glad that you have occasionally voted for a Republican. However, I find it hard to believe that a 62 year old person has never once in their life voted for a Republican in any election, including local dogcatcher, isn’t an uber-partisan fundamentalist extremist. I don’t think that is how the above addressee started out. But, it kind of figures. It is like that German guy, Nietzsche, also said:
To forget one’s purpose is the commonest form of stupidity.
Squeeky Fromm
Girl Reporter