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
Let me know if you need any help Jon.
Not at all Squeekers, just trying to understand you. The thread hasn’t derailed, unless YOU do it…again.
@PaulCS
Annie is trying to bully me into a fight about Hillary before Hillary has announced, the Republicans have announced, and the race begun. But, I am not falling for her attempt to derail the threads here. She will just have to wait for some other little goat to come trip-trap trip-trap trip-trapping along. . .
🙂
Squeeky Fromm
Girl Reporter
Paul where it’s apropos, I’ll be using it. It’s perfect actually in describing what I’ve observed. I’m sorry the use of the word somehow strangely bothers you, but that’s no concern of mine.
Annie – I am not bothered, I am bemused. You have a different phrase of the week and I am beginning to look forward to them. I love watching you shoehorn them into your arguments. It is a kind of use it or lose it philosophy.
Just heard the speech from our President, who even quoted scripture in his speech. I am so interested in hearing the professor’s thoughts on this.
Shorter Obama speech: Not amnesty, just all of the features of amnesty. Also, you’re for it, or you hate children.
“@HillaryClinton: Thanks to POTUS for taking action on immigration in the face of inaction. Now let’s turn to permanent bipartisan reform. #ImmigrationAction”
@Mike Appleton
You don’t have to wait for me to finish a psychiatric residency. You can get help now! There are many fine psychiatrists out there. If possible, try to find a Jungian analyst. Their focus on symbolism and myth will give the both of you a whole lot in common to talk about!
Squeeky Fromm
Girl Reporter
Squeeky:
LOL. When you finish your psychiatric residency, let me know.
On a more substantive note, however, you are correct in your observation that I do not put a great deal of stock in scientific skepticism which is predicated on an assertion that something is not possible because God said so.
I should also point out that I actually read all of the sources I listed at the end of my post, a very time-consuming process. I particularly recommend George M. Marsden’s “Fundamentalism and American Culture.” He is the premier historian on the topic and a wonderful writer. In case it’s important to you, he is also a conservative and an evangelical.
Squeeky,
Yet you’re going to vote for Hillary Clinton. Cognitive dissonance, is there cure?
Annie – is ‘cognitive dissonance’ the phrase of the week?
@Mike Appleton
Sooo, when the Democrats were getting what they wanted (Nixon gone) then there was bi-partisan civility. When the Republicans wanted Clinton gone, for perjury, then there was no bipartisan-civility. Hmmm. That seems to fall in line with my statements above. Democrats have problems with that whole “principle” thingy.
And, you still fail to address the nature and source of the skepticism. When liberals (think Democrats) are skeptical of things then it is because they are just too smart to be fooled, or just don’t trust government, whatever. There is no search for a deeper motivation.
But when conservatives (think Republicans for the nonce) are skeptical of global warming, then it is time for a search of deeper motivations, either Christianity or the Koch Brothers according to you. Even though the arrow of time positions the conservative skepticism AFTER the generalized distrust of government which arose in the late 60’s and 70’s when one would naturally expect a more skeptical public. Which is also the most obvious and best choice of reasons—one which you never saw. I am reminded of Mme. Sosostris and what she was forbidden to see, here.
Sooo, once again I think my observation of a fundamental mental disconnect on the part of Democrats is confirmed. I am not sure it is treatable.
Squeeky Fromm
Girl Reporter
Darren:
Thanks for taking the time to sort out the software glitch.
Darren, You seem to enjoy the challenge. I appreciate you monitoring and reporting the problem. Do you think wordpress is fundamentally flawed, or is it mostly episodic?
Squeeky:
Actually, I believe that I can produce an intelligible answer to your Watergate question. You were not yet born at that time, but I remember it quite well. The fundamentalist resurgence was not yet publicly evident. The Watergate hearings were conducted with bi-partisan civility and publication of the Pentagon Papers produced a national catharsis that was healthy
Southern Democrats were still in the process of realigning with the Republican Party in an effort to avoid or delay implementation of civil rights legislation. Within a few years most of those folks had followed Strom Thurmond and Jesse Helms and the Moral Majority emerged to reclaim the nation from the evils of the ’60s. The resulting merger was, as they say, made in heaven.
Mike A.,
Your speaking the truth is considered to be a partisan attack? I guess some think we should only be critical of Democrats–never Republicans
Haz, that is untrue, but you can assert whatever you please I suppose. Can you provide a comment of mine in which I called someone a “Fundie” or “fundamentalist”? Actually I don’t ever recall using the term “fundie”, which makes me quite sure you are not telling the truth.
Looking forward to JT’s article on the EO tonight.
NIck,
In looking further into the misplacement in comments I have noted the following (though there is nothing that can be done about it except by those who administer the WordPress software itself or perhaps the database)
The commonality is as follows between the two articles:
Turley Lawsuit article Post identifier; 85392
Fracking article Post identifier: 85592
You can notice between these the common digits are all but the third digit from the right.
The binary representation of them is as follows:
T: 1 0100 1101 1001 0000
F: 1 0100 1110 0101 1000
From the right to the left there is a pattern among the differences between the bits :
Fourth bit, third bit, second bit, and next bit.
taking the bits to represent themselves as a binary digit it would be 1111 or 0xF
Taking 1111 and AND’ing it to both binary representations of the Post IDs results in 0000 and 1000, if this matters.
I don’t know if this is merely a coincidence but there is a pattern to it.
I suspect the bug is either manifesting itself when the software creates the article’s page (and within this the Post ID that will be used when the person clicks the Submit comment button) or when it sends it to wordpress to process it into the database. Unfortunately either way there is nothing we can do on our end to correct the matter. it probably won’t manifest itself when the articles are out of range for this bit pattern but if the bug comes back again it is something that wordpress developers should be made aware of.
@PaulCS
I assure you that somewhere, somebody was ROTFLTAO at my “picture” comment. . .
Squeeky Fromm
Girl Reporter
Annie, you regularly call conservatives here “fundies”. And I have not referred to you as a cultist or a fundie,