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
@MikeAppleton
I call them like I see them. You will note that I was careful to include your partisan attack on Boehner and McConnell in the quote. That was for a reason. The fact that you simply could not bring yourself to mention the roadblocks over yonder at the Senate with Herr Reid in the mix was your “tell.”
That is the same “tell” that was evident in your “theological” analysis of global warming the other day. Gee, was all the skepticism of the establishment for the liberals back in the days of Watergate, the Pentagon Papers, The Warren Commission Report, etc. etc. . . . was all that based on evangelical Christianity or the Koch Brothers???
I don’t expect an intelligible answer to that question.
Squeeky Fromm
Girl Reporter
And Haz, liberals get called “cultists” here almost everyday. I haven’t heard you remark on that.
Haz,
I have never called anyone here a “Fundie”, IIRC. I have however voiced my opinion on fundamentalists and fundamentalism in general. That includes Christian and Muslim.
Paul Schulte:
I hope that the pain is only moderate. 😏
Mike – the pain will recede in time 🙂
Annie said:
Because people differ in their philosophies doesn’t indicate one is necessarily right and one wrong.
Does this mean that you are going to stop calling other commenters “fundies” if their opinions are not identical to yours?
Squeeky, you presume a great deal in your comment. I will refrain from responding to your speculative sojourn in the realm of Democratic sociopathy.
My interest is in ideas. Therefore, it is of no interest to me whether the sitting chief executive is a Democrat or a Republican. If you had undertaken the painstaking (and numbingly boring) task of reviewing my many posts on this site over the past five years, I believe you would have responded somewhat differently.
I, too, sometimes long for a world in which questions of right and wrong, justice and injustice, constitutionality and unconstitutionality, were clearly delineated. Since that is not the case, however, I am limited to applying whatever analytical abilities I have to the world as it actually exists.
I know of no principle of constitutional law that compels the federal courts to intervene because the two major parties are unable to agree on something. Congress may sometimes resemble a playground, but the Supreme Court is not a playground monitor. When I say that the problem is fundamentally a political one, it is because it is. Congress has methods available to bring the executive branch to heal if it chooses to use them. The last thing in the world the courts wish to do is get involved in a fight between the other two branches of government. And they have declined to do so essentially since the beginning of the republic.
We do not litigate “principles.” We litigate justiciable controversies utilizing legal “principles” to resolve them. That is why I said in a previous post that we will have to see how the proposed suit is framed and the issues that are raised. If you regard that view as wading in a “moral morass,” so be it,
@PaulCS
In re: “lorem ipsum, etc.”, I am sorry that you didn’t get the picture. . .
Squeeky Fromm
Girl Reporter
Squeeky – picture, there was a picture?
Amazing that anyone here feels they have the moral authority to tell anyone here they don’t know “right from wrong”. Because people differ in their philosophies doesn’t indicate one is necessarily right and one wrong. That is such simplistic thinking it boggles the mind that any adult could write something so outrageous. It is an authoritarian and absolutist way of thinking that has no place in a serious discussion, or the speaker of such rot risks being criticized as being silly and simplistic.
Darren – are you hijacking the thread in Latin. It has been over 50 years since I took Latin. I cannot keep up. 😉
Darren Smith: “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 … ”
That’s part of the public political context.
What I have noticed is that far too many Democrats are sociopathic-like in the sense they can not mentally understand on any meaningful level what anybody is talking about when the word “principles” is involved. As I said above, twice:
There are many concrete examples on this thread of that fundamental failure to comprehend the concept of right and wrong. Simply look for the Democrats who comment that this is all “political” or “partisan.” This is an overt admission that they are projecting their own inner state of mind onto others. Because they are partisan shills, then they presume that everybody is a partisan shills. Therefore, Turley must be a partisan shill of some sort, or a useful idiot to partisan shills.
Even people like Mr. Appleton, who know Prof. Turley well, and verbally profess admiration for him, can not help but devolve into moral morass of:
Gee, did Mr. Appleton never hear of the little thingy called, “The Senate”??? And its glorious leader, Harry Reid??? And the near complete shutdown of any Senate activity under his leadership??? But inside Mr. Appleton’s skull, that doesn’t matter. He is the “bad wrestler” and right and wrong and truth and honesty are foreign concepts. It is all “personal” and somebody is trying to stop somebody he likes (Obama) and that is all that matters.
If it were a Republican president doing these things, and Turley was leading a legal challenge, Mr. Appleton would be all for it, but he would still have no basic understanding of right versus wrong. He would mimic the words that others were using about “separation of powers” but he still would not actually understand them. All he would know is that somebody was attacking somebody he didn’t like sooo—it’s a good thing.
One would have as much luck trying to get some of these Democrats to understand “principles” as they would trying to make a serial killer why killing and carving up baby kittens is a bad thing. The underlying mental framework just doesn’t exist.
Squeeky Fromm
Girl Reporter
Darren, I noticed a misplaced comment or two today. I do that sometimes and figured it was just brain farts. But, if it’s goblins or poltergeist, you will beat them.
Nick,
There were a few comments made to one article that appeared in the comments of another. I was seeing if the issue was repeating itself. I don’t know why this happed but it looked like something to be investigated.
@ ??
Actually it did have a meaning.
http://en.wikipedia.org/wiki/People_United_Means_Action
Darren, Thanks for dealing w/ the wordpress goblins.
I agree with Darren and most of what Mike Appleton said vis a vis this thread. And I quote:
What could have been a very thought-provoking discussion quickly degenerated into partisan finger-pointing…
It is very tiresome when a thread disintegrates. I do wonder, from time to time, if it isn’t done on purpose to silence others? Sad.
I thought PUMA was an abbreviation for something
MikeA is our wise man. Great comment. But, you lament the partisan finger pointing here; and then, in your third paragraph state, “the underlying battle is fundamentally political.” Be honest w/ us and yourself. The politics of commenters here have changed, and you don’t like that. A year ago the comments on this thread would have been heavy Dem, which fits your views. I communicate w/ other commenters here of the Rep persuasion. They want some good debate as well. But, beside yourself and a few others, the Dem commenters are pretty weak. This place needs more folks like you. And, whether you believe it or not, many people who disagree w/ your politics wish we could clone you.
I agree with Darren. What could have been a very thought-provoking discussion quickly degenerated into partisan finger-pointing, as though executive overreach is a post-2008 phenomenon.
I have been a frequent and pointed critic of the imperial presidency, but it didn’t start with this president, and it won’t end with him. It is the product of a fearful population and a cowardly legislative branch. History teaches that power, once ceded, is not readily relinquished. Congress has adopted a bad habit of substituting resolutions for actual legislation. Of course, if Congress merely dumps a problem on the president with blanket authority to fix it, that body escapes responsibility for the outcome,
I have a great deal of respect for Prof. Turley’s constitutional views, which is why I have continued to comment on this site. However, I believe that those who view the proposed lawsuit as a vehicle to restore a proper respect for the separation of powers are living in dreamland. I have no idea how the action will be framed, or what issues will be litigated, but there are formidable obstacles. First and foremost is the fact that the underlying battle is fundamentally political, and a strong argument can be made that Congress could do something about it were it not for a lack of leadership. I am certainly not convinced that the brain trust of John Boehner and Mitch McConnell will make for a productive Congress. Mr. Boehner hasn’t been able to control his own caucus and, if anything, the new group will be even less manageable than the last. And the problem with the Senate is that it is increasingly looking less like the sober, deliberative body it was intended to be and more like a smaller version of the short-sighted, parochial college that is the House.
Second, this is not a matter of filing some sort of petition and securing a writ of mandamus. That remedy is only available to compel someone to perform what is known as a ministerial act, which mainly means something that is “mandated” by law and doesn’t involve the exercise of discretion. So forget using the suit as a means to halt whatever immigration plans the President will announce tonight.
Political questions and the executive’s use of its discretionary authority are not matters the Supreme Court will want to deal with. We’ll have to see how it all plays out. But those who think that the litigation will succeed in eliminating the last vestiges of the New Deal or restoring some sort of libertarian paradise that never existed are setting themselves up for major disappointment.
Mike A – painful as it is I am going to agree with you. I am against executive orders and signing statements, regardless of the President doing, and that goes back to Washington.
Sandi,
How the heck do you know who Professor Turley voted for in 2012? For all you or I know, he voted for a third party candidate.