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
rixse (@rixse) … you apparently ignored my “tinfoil hat” preface remark. Some things are really tongue in cheek. I was never a birther and I was mocking those who have held that opinion. None-the-less, the scenario I posed is entirely possible. No matter, Barack Obama was a young boy who was essentially abandoned by both parents….whomever they were. That leaves a mark.
BTW…I was responding the Paul’s comment that implied Obama might not be legal. I think he is legal. Your knee jerk emotional reaction is amusing, as I said before.
Err…how many times on one thread do I have to comment that Professor Turley’s acceptance of the task from Congress is laudable? Now, on topic, have you made a comment on that topic either way? I may have missed it. I don’t live at my computer.
Aridog – rixse dropped one link to Presidential executive orders then went all ad hominem. The WH did say it was sending out the troops to back this whole thing up so I think he is part of the blogger group. I think we are going to see a few of them over the next few weeks. It was clear he was new to the site and didn’t know the background of people or how the site works
IRS ‘Scandal — Check
Bengazhi “Conspiracy” — Check
Impeach the “Imperial President” — Check
More Republicon White-Wing Nonsense — Check (ad infinitem)
zelalis – another member of the WH staff heard from. BTW, did you see they found some of Lois Lerner’s emails?
Dust Bunny Queen, both parties have what they think this country should be. Conservatives believe in smaller, less intrusive government. The Progressives, née Liberals have a socialist view. I don’t know what name they will use next. There are people who believe they know what is best for everyone. This is how ACA came to be. It wasn’t written by your representatives, it was written by various “experts” based on hypothetical projections. It is 2,800 pages (the last I heard) that is impossible to read. Try it. You will be stumped by references to existing laws adding something or eliminating. Why didn’t your Representative tell you in 2012 elections your insurance had to meet the requirements outlined in ACA? Because the American people would have said that’s nuts, as they did in 2013 when insurance renewals arrived with coverage they didn’t want/need for exorbitant payments. They all knew it (look up Senator Gillebrand’s statements). The American people didn’t do due diligence; too busy playing video games. Republicans knew and said so to deaf ears. Romney told you. And now we have a Conservative Congress because Americans were furious about what happened to their insurance. We sent them there to stop the insanity.
DBQ,
Great posts and if I could add one thing: The Legislative branch is under no obligation to further an Executive branch agenda. They are the representatives of the people that elected them; not the President. Nowhere in the following oath are they swearing allegiance to anything other than the Constitution; certainly not the President.
“I, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
It’s probably discomforting for our progressively educated citizens to see some members of Congress actually honoring their oath of office; they don’t do it often enough for anyone to get used to it, so when they do, it almost seems wrong. And then when Professor Turley accepts the challenge to also honor that oath, he is considered by many (especially from the legal community) to be an enemy of the state. Go figure.
No other congress to my knowledge has said they will not do the work of the country,
The Country consists of many different and disparate groups, geographical areas, demographic constituents. economic interests. There isn’t always ONE “work of the country”. Unless we are attacked by a foreign power and are at war…. that is. And even then…not always cohesive country wide.
This is why we have Representatives in the House to represent their individual areas. What works for one part of the country may not work elsewhere.
The Representatives are there to do the work FOR their constituents . Maybe it will be the work of the entire country and that would be nice. But…….not necessarily. I want my Representative to represent ME! Not you. Not anyone else.
The goal of the opposition party is ALWAYS to keep the other guy from being re-elected. This is not a revelation. Really. Why is this a surprise to you guys?
The country has ground to a standstill in many ways because of the obstruction
Sometimes standstill is good. Thelma and Louise probably thought that it might have been better to put on the brakes. Doncha think?
DBQ, No other congress to my knowledge has said they will not do the work of the country, only of party and obstruct even when it is things with which they have agreed in the past, as soon as the name Obama put to it then say we won’t. Look at Tip O’Neill and Reagan, They knew they were elected to work for the country and to work with each other. and they did so. McConnell said his goal was to keep Obama from being reelected and that was all he cared about. The country has ground to a standstill in many ways because of the obstruction. As one example over 150 nominations not acted upon. Many judgeships resulting in the denial of their day in court for many people where no judge is named or seated.
The leaders of the Republican House and Senate are on the record on the day of the first inauguration that they are going to make sure Obama does not succeed
Try to follow me here:
We are a Representative Republic. Our elected Representatives are sent to Congress to do the will of their constituents. The Representatives run on a platform of promises that say they will do or will NOT do certain things: that they will support or NOT support certain policies.
The Democrats represent the wishes of their constituents and represent their Districts.. The Republicans do the same. (At least we HOPE that they do this. I’m not so sure about it)
However……the Republicans were sent to Congress to stop the policies espoused by Obama and by the Democrats. The Democrats were sent to do the same to the Republicans.
Of course the Republicans want Obama’s policies to fail. That is WHY they were sent to Congress.
There is nothing nefarious about this. It isn’t about Obama. It is policy and politics It is the normal course of political events and has been so for hundreds of years.
y’all act like you just fell off of the proverbial turnip truck.
This Supreme Court strikes me as fighters, both sides. But, does the left want presidential overreach? Don’t think so. Certainly the right doesn’t. This is a major constitutional crisis. Does anyone believe they’ll say “no, not us?” This reminds everyone the Court is 1/3 of the government, not some poor brother-in-law. Will the court where it’s filed take forever or recognize the problem. I can assure you not all Democrats are thrilled with this situation. For all the impeachment people, it’s the proper thing to do. But, impeach a black, or half-black President? And watch the fires.
Question: when the Bush lawyers went to Kennedy he put a halt on everything until the Court ruled on the law.
If this gets to the Supremes is the process stopped until their decision?Also,how does something get fast-tracked as Bush-Gore was?
If some people get started in this process, but not yet finished, what? And, if someone has gone through the entire process and been granted living here, after his information is known, is his approval cancelled?
Human being to human being this is full of problems. And the ones to suffer from it are the honest ones, maybe.
This is why the Constitution was written as it was. Excepting ACA, specific rules are agreed to before the President signs. Then a start-up of the law is begun and a date given to be fully instituted.
Are we going to wait two years to “find out what’s in it?”
We have an incredible document, the Constitution. We are envied all over the world about free speech. More than 200 years of working within it’s parameters and we’ve hit a wall. Because getting a progressive President elected twice wasn’t enough time to get it all done. They had two years and then the people said “stop!” Because progressives know what’s best for 300+ million people, they risk the document that holds us together because they want something the people haven’t given them the power to have.
If this was a movie you’d call it a farce!
Inga, don’t take it personally, I chastise everybody who votes for a third party. And I’m sick of “making a statement” nobody cares. Pick one of the two. That is a meaningful vote. One of the two will be President. You know if you ‘re conservative or liberal. Anybody who voted third party instead of Romney is an idiot. Because those votes got us Obama. He was a snake oil salesman from the get go. Hope and change. Transforming the country. Most people who voted for Obama the first time, and are willing to admit it, because of hope and change. What did he mean by hope? We all have hope, how was that going to be different?
But change/transform? Oh boy, we know now. And many of us fear what the next two years will bring. I believe that’s why JT accepted the House appeal. He took on a very unpopular task. The liberals will try to rip and tear him to shreds. But he has too much respect from too many people to tarnish him. And that has to be from us. His blog, his colleagues, his friends, everybody. Don’t let this man down!
Sandi – I care!!! That is who cares about making a statement vote! I do! McCain was a known snake in the grass, Romney was also a snake. So was I going to vote for a snake or someone who would represent the best in all of us, Mickey Mouse.
Paul, by your definition, snake in the grass, they all are. One of those snakes is better than the other. One of them is going to be President. Be counted. Not tossed..
Sandi – there was a time when I would hold my nose and vote for the less worser of the two candidates. However, as I have gotten older, I decided I don’t have to put up with the crap anymore.
raff, I stated just yesterday I have had discussions w/ folks who comment here on the dearth of substantive liberal commenters like MikeA. We want engaging liberals to discuss interesting topics w/. This rixse seems to be a clown. There are conservative clowns as well, so don’t throw that @ me. But, a serious question. What about me would EVER make you think I want an echo chamber.?Have you not gotten the sense I like to mix it up?? I like the battle. Come on, man.
I spent a day watching Obama discussing ACA with both parties. It should have been all Republicans because that was all the time they got to discuss ACA. He said “elections have consequences, I won” and that was an honest comment on how he views the Presidency. Problems brought up were often responded with “I’ll look into that” and that was that. Eric Cantor brought up the specific problem with the President’s constant “if you like…” You all know the rest. Cantor brought up that everyone’s plan had to change, no one could keep their current plan. That was the clue we all should have listened to.
Why Republicans didn’t make that issue bigger I’ll never understand. Romney tried, but the answer was too brief. There should have been specifics. Everyone in Congress knew this, but none pointed it out. Obama does not meet with congressional people, only Democratic leadership. I’ve never experienced a President behaving like this. Why does anybody believe a word of last night’s speech?
There’s another shoe to drop. When and what we don’t know, but it will be a much bigger shoe, actually a jackboot!
Paul,
The leaders of the Republican House and Senate are on the record on the day of the first inauguration that they are going to make sure Obama does not succeed and they have kept their word. The Senate has had over 400 filibusters, including many presidential appointments. These are facts, not the nonsense spread by Mr. Boehner and others.
Nick,
It amazes me that Dems or Progressives “stink up the joint”, but you are the one who repeatedly claims that this blog was an echo chamber, but yet you seem to be calling for an echo chamber from the right.
rafflaw – how do you work with someone, or why should you work with someone who said I won, ninner ninner, I don’t need you. Hell, even Democrats complain that Obama won’t work with them.
What leejcaroll said! The idea that Congress has attempted to work with Obama is just nonsense.
Ari, Like Paul pointed out, he/she look to be a Dem, here to stink up the joint. As you know, it’s been a rough couple weeks for the party of Jimmy Carter and Obama.
@Paul C.Shulte – Calm down. Sounds you are heavy weight, ready to fight… “work against”… please throw it around in your club. Now if you would stick to the topic of the blog that would be worthwhile.
Who the flip is “Aridog”? Would you mind reading what you posted above about the POTUS and his background where he comes from or who his father is. Get a life. The blog is about the balancing of the three legislative branches and not your typical Glenn Beck and Rush Limbaugh spins that turn in to personal hatred towards an individual. You “sir” are not even worth replying.
rixse – I heard that the President was sending his people out in force. Guess this was your assignment. Clearly, the President is not getting his monies worth.
Now, if you are man or woman enough to engage, I posit that executive orders and signing statements are not within the power of the executive. Just because they have a long history, does not make them legal. Nor does one President signing more than another prove anything. Two or three wrongs do not make a right.
BTW, they just recovered some of Lois Lerner’s emails, so things are going to get interesting on that front as well. If I were Obama, I would be hiring lots of new lawyers, it is going to be a long two years.
Nick…I punch any direction deserving it. It is a flaw of mine.
BTW…who the flip is “rixse (@rixse) anyway?
rixse (@rixse) said…
@Aridog… you are what your name states… a rabid one. Your post smells of pure vile, asinine, hatred.
You are amusing, that I’ll give you. Please cite where I said anything “vile, asinine, hatred” related. And do please, please tell me how my “name” indicates all of this bile?
Go ahead, Amuse me some more. Tell me how my support of Professor Turley is vile or whatever the flip…do it, just do it. Show us your real colors.
I try to never punch down.
@Paul C. Schulte – just as nice to see GOP at work. @Nick Spinelli Reserve your bigotry and hatred to your ilk.
rixse – it is hard to work against light weights. But I am an Independent. Anyone here can tell you that. And that I voted for Mickey Mouse in the last two Presidential elections.