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
Swarthmoremon….Thank you.
Your Wiki citation actually makes the bottlenecking worse, for either the House or the Senate. It adds individual solitary discretion on what is worthy and what is not. Once a bill is passed out of committee, it should be mandatory it receive a full vote by the entire body, House or Senate. I am not in favor of this procedure by either party in either part of Congress. It allows too many representatives to hide their positions.
While I agree that the balance of legislative powers as provided in the Constitution should be upheld and defended, it is unfortunate that this lawsuit is being brought solely for political gain. And for this reason, the cost of this lawsuit to the taxpayers is totally irresponsible on the part of House Republicans.
“However, the Hastert Rule is an informal rule and the Speaker is not bound by it; he/she may break it at their discretion. Speakers have at times broken the Hastert Rule and allowed votes to be scheduled on legislation that lacked majority support within the Speakers own party.” wiki
Thank you so much for your courage and conviction. The American people are very grateful.
Haz said ….
Boehner won’t bring a bill to the House floor unless it has the support of a majority of Republican House members. This is informally known as the “Hastert Rule”, named after former speaker Dennis Hastert. Both parties do the same thing.
Yes, both parties do it.. If I could wave a wand or swing a club to change anything in Congress it would be this travesty of democratic deliberation. Would that a law be passed forbidding this insanity. Once a bill is sponsored and submitted it goes to an applicable committee. If that committee vets and approves it and passes it out of committee, there should be a mandatory up/down vote by the whole House or Senate. When a bill originates in either House or the Senate and it passes out to the other, and passes out their applicable committees, there should be a mandatory vote by the whole. If it then fails, it has been treated by the entirety of representation.
What we have now is a ludicrous bottlenecking by minuscule staff, even one person. That is the antithesis of democracy in a republic. It allows members of either body to hide and not speak up via their vote.
YMMV
Thank you for your service to the American people! FINALLY!!!!!
Washington D.C. is an empirialistic bubble surrounded by reality, and not representative of the American people nor the U.S. Constitution, which has served this country exceedingly well for 238 years.
The Executive branch made it very clear from the beginning that it’s intentions were to “Transform America”. Based on the outcome of the elections and myself included, I am vehemently opposed to this “transformation” aka: shredding the Constitution and the very laws of the land.
Prayers to you, Mr. Turley.
In the news this morning – House GOP files lawsuit against Obama re Obamacare. JT is mentioned.
http://www.wisn.com/politics/boehner-house-gop-files-obamacare-suit/29860384?utm_source=dlvr.it&utm_medium=twitter&utm_campaign=wisn12news
@leejcaroll:
Boehner won’t bring a bill to the House floor unless it has the support of a majority of Republican House members. This is informally known as the “Hastert Rule”, named after former speaker Dennis Hastert. Both parties do the same thing. In the case of the immigration bill, it does not include provisions that close the porous sections of the border and establish an e-verify method of identifying whether a person is a legal resident of the US.
Those are two very important things for Republican House members, and President Obama has said repeatedly that he will not negotiate the provisions of the bill – it must be EXACTLY what he wants, period. Hence, a bill has not been brought to the floor. Had Obama been willing to work toward a political compromise, the Bill might have succeeded.
I have not read all the comments posted since yesterday (over 100) but has someone mentioned Reagan and bush also did the same. although they had a congress who was actually willing to work.
Why hasn’t Boehner bothered to bring to the floor the bill he was sent from the senate, a bipartisan bill,. If Boehner, GOP really wanted to do work on immigration reform they would have done it. This is another example of GOP refusing to do the work of the country and instead only the work of their party.”
Tort master , You are so smart , just like Gruber and Obama . Seems like you are really proud of your comment about carl Rowe as you keep repeating it .
Sammy, because all witnesses have to testify in court before they can … testify in court? Turley is a potential witness in the case. How do I know this? Because he has already been a witness about the case. That’s a violation of the Rules of Professional Conduct, not only in the District of Columbia, but also any jurisdiction that uses the ABA Model Rules.
By the way, if I were in the AG’s Civil Division, I would have a witness list ready to fax back to Turley as soon as I received the complaint. Turley’s name would be on top of it.
I notice you didn’t have cause to question that Turley violated the rule about extrajudicial statements. (If you did, I would suggest that you scroll up).
Still hope that his “[T]he House ‘had me at hello'” becomes the next David Gregory dancing to Karl Rove’s rap. Those two abominations work the same on so many levels. I would suggest that Turley sold out, but he never actually sold in.
Tort Master – testify just means that you have spoken under oath. You can testify in a variety of places besides court. Professor Turley has testified, under oath, before Congress.
BarkingDog, when will we find out whether the court will accept this lawsuit?
One aspect, the central one, of the President’s plan here is that he states that if Congress passes a Bill into Law that it will supercede his Executive Order. So, if Congress sues the President and in the meantime cannot pass a Bill, then the Democrats who side with the President can file motions to intervene in the Republican led lawsuit and contest the Standing of the majority voters in Congress to represent all of Congress. So, what I said on Standing To Sue yesterday and before on this issue just got more central to the whole shebang.
I just listened to the President’s speech. The Executive Order he is going to issue is fairly limited. Then, on CNN the main guy was discussing this notion of a lawsuit by Congress and raised the Standing To Sue issue which I raised on this blog. I am glad that CNN is reading this blog.
BarkinDog – Sheriff Joe Arpiao has said he will sue on the immigration issue. He has the fighting the President and the DOJ on non-enforcement of the law for some time.
on 1, November 20, 2014 at 4:12 pmSandi Hemming
“There are 2 true candidates, a Republican and a Democrat….That is not a vote. I think he takes his vote very seriously.”
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So Sandi, if Professor Turley voted for a third party candidate are you saying he too wasted his vote? That he doesn’t take his vote seriously? It seems that you just assumed he voted for either a Democrat or a Rebublican and didn’t even entertain the idea he voted for a third part candidate.
Sandi, that info is also mentioned in the blog above (As many on this blog know, I support national health care and voted for President Obama in his first presidential campaign).
JT waiting for your thoughts on the immigration EO..
Sandi,
We all know how JT voted in 2008, he’s said so numerous times. It is 2012, I am referring to. Like I said, you assumed he voted for a Republican in 2012, did you not? I pointed out that neither you nor I know that for a fact and that he could well have voted for a third party candidate, just like me. So I pointed out that for all we know JT went with principal over winning.
Annie, you asked how I knew who JT voted for. He said so at a committee hearing. Apparently not in 2012, just learned recently. I never said he voted Republican. I would, of course, hope so. And Romney was a good man, with successful history. That’s for JT to say if he chooses.
Sandi, I was never asking you about how you knew he voted in 2008 BECAUSE we all know how he voted in 2008, I though I would be evident I meant 2012. Apparently you assumed he either voted for a Democrat or a Republican in 2012. I was wondering why you thought he wouldn’t have voted for a third party candidate in 2012. You chastised me for voting for a third party candidate, but for all you know, so did Professor Turley. You stated he took his vote seriously while you indicated I didn’t, get it now?
Annie, I know Professor Turley voted for Obama the first time because he told everyone while testifying to a committee. I would never presume how someone voted.
obama was telling hispanics for years that he cant issue an order like the one he just issued, so does that mean he was not telling them the truth all these years?
Mike Appleton,
“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.”
Do you consider JT among those living in dreamland? If this approach is a fool’s errand then would you please enlighten us on what would be the vehicle to begin to restore a proper respect for the separation of powers?