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
Sandi it is the other way around, congress, ie the GOP has refused to work with this president and stated that was their intention the night of the first inauguration.
rixse – it is nice to see the Democratic party operatives out in force.
Ari, Simply click on who this rixse follows on Twitter and you’ll realize it doesn’t even deserve any reply. ‘Nuff said.
I clearly would not want anyone reading this in the Washington Times if I was writing budgets.
http://www.washingtontimes.com/news/2014/nov/20/golden-hammer-at-faa-bigger-budgets-for-less-work-/
@Aridog… you are what your name states… a rabid one. Your post smells of pure vile, asinine, hatred.
For all those who are crying foul on executive powers… please look at stats “http://www.presidency.ucsb.edu/data/orders.php”.
Paul, I didn’t notice the name change. I saw the picture. I don’t think a man as committed to the way our country is supposed to work would not have voted in 2012. He may gave voted for Obama again. I really don’t care. I’m just thankful he has taken this case (or given it “gratas” as CNN drilled us). Nancy has now called him “that television lawyer.” Keep digging, Nancy, the hole is getting deeper.
Annie, what is your point about a third party candidate?
Finally, I repeat what I’ve said earlier a couple of times. Really good lawyers get hired by clients who need really good lawyers….as I have a few times in my life, even when the issue wasn’t the lawyers cup of tea personally. One of the best lawyers I know is a liberal Obamacrat-Democrat, however, if I am ever charged with a criminal complaint, he’s the guy I want…former cop from a very tough detail in Detroit, and the best man I know to drill down to the truth in any case. He is merciless against any opposition.
That said, I am impressed and delighted than Professor Turley is taking this case on…it really IS the American way.
Inga….What?!!…you mean your real name wasn’t Allie Oop? Shocking I tells ya….but I do respect your reversion to a real name. For G-d’s sake, stick to it.
I kept my pseudonym because it is what I’ve been known by for many years, both officially (the US Army) as well as unofficially on-line, and when I tried to switch to my real name, Richard Thompson, on an Israeli blog I was roundly (if humorously) told to not confuse things…they all knew who I was because of my profile with email address, etc. and they all knew how much I loved “Ari” the dog…so I reverted to it.
Annie – stop calling me dear. It creeps me out and gives my nightmares. And Inga is now your ‘new’ personal which are going to have to build and defend. Aridog is right in his comments about switching. Although, some people, who are used to using sock puppets, would have less problem then most.
Paul…(as I place my tinfoil hat on my head)…I do believe Obamasan is a born in America American citizen. I do not believe Barack Obama Sr. was anything but a convenient & available student stooge when ole Stanley Ann got knocked up by her her buddy, and risqué photog champion, Frank Marshall Davis….fundamentally a Communist. Ole Barack Sr. got left at the starting gate when Stanley, with Barack Jr. in tow, moved promptly to Mercer Island, Washington about as far away from Barack Sr and ole Frank, very senior to her in age, and doubtless an embarrassment to her family. I doubt even Barack Jr even knows for sure who fathered him…but if you line up photos of Barack Jr and Frank, they are quite similar…and with Barack Sr., not even close. Eventually he was also abandoned by Stanley Ann and dumped on the grand Parents, who raised him from age 10 or so onward. No wonder he has not clue who he is and what he is…but he tried hard to invent a history….even harder to be “black” though raised in a nearly all white or East Asian world.
Now a DNA test could convince otherwise…but the Barack Sr “story” is just too cute. And, it no longer matters. He is what he is…even if he doesn’t know it, yet tries to invent it.
Just an odd thought. If, in fact Obama is not legal, this could prevent him from being deported. He could have signed an Executive Order preventing his own deportation.
JPeden – I am sure that if the DC court refuses to hear it that it will go on appeal.
leejcaroll, Reagan and Bush never refused to work with congress. Obama doesn’t work with congress. There were many problems with the Senate 800-page bill. I think we’ve learned our lesson from ACA. Why must Democrats make every bill so big? You can’t solve everything in one bill. If Obama will truly begin enforcing our border. Since he’s already let God knows how many in he actually might. The idea of established illegals being allowed to stay, etc., is from Newt. He recommended this approach during the 2012 debates. It’s the details. If you thought Nixon was tricky, keep your eyes open for sneaky Obama.
Sandi – I don’t think this immigration this is going to play well in 2016 for the Democrats.
If the Courts refuse to take this case or defer to the Legislative Branch, what are they there for? Go Turley!
Sandi,
I give up. You obviously are not understanding the POINT I’m trying to make here about voting for a third party candidate. I’m not angry with you, but it’s getting tiresome to keep responding to you when you don’t seem to be able to grasp my meaning.
Inga – I think that Sandi is not getting your point because you are not in touch with your new identity; Hence, you are a little vague on your ‘point making.’
Paul, dear Paul, lol. My “identity”? The only thing that has changed is that I’m using my real first name instead of a pseudonym.
Annie, you need to read slowly. I never said he wouldn’t vote for a third party. If there was a Constitution party on his ballot, he may have voted there. I hope he voted for Romney because he was the best candidate. I don’t think he would have taken a pass. You are angry. It comes through in your posts.
Michael Haz, Don’t thinks so
but lots of games are played with senate rules. Airdog, You are welcome.
Haz, it’s the Vegas Rules. If we don’t want you in the casino, you’re banned.
Swarthmoremom: Is there a similar rule for bills being held in the Senate? I am curious to know what rule or precedent Harry Reid is using to block introduction of more thtn 300 bills passed by the house.