800px-Capitol_Building_Full_ViewAs 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


  1. I read Bush and Obama EO’s. Most of then are trivial. Minor changes in a Cabinet department. I think Obama did this for his legacy. He knew Congress would pass something next year and he wants all the credit.

  2. I missed where in the constitution it says Congress has to “PASS A BILL” or else. Where does it say the President is authorized to write temporary “laws” that will “clock in” to effect unless Congress gives the President a bill he will not veto? Apparently the President believes he should take his “big stick” and thump Congress over the head with it until he gets his way. That is a marvelous extension of the bully pulpit.

    If “the work for which the taxpayers are paying them” is not being done then WHY did they expand the House GOP and switch the majority in the Senate? Let me guess, gerrymandering? So much critical-thinking to do; so little time, right?

  3. Paul,
    I’m under no illusion that Ray will suddenly realize he might be wrong, let alone that he is wrong. There are essentially two groups that debate on this blog; those that view government from a Party perspective and those that view government from the Citizen perspective. It’s the former group that is often left grasping for the moral equivalency point, as if that will somehow make either position legitimate.

    It’s jaw-dropping to witness adults resorting to a tactic that didn’t work in childhood; but then again that assumes one has intellectually matured. The Alinsky tactics are the final arrow in the quiver and simply one notch more sophisticated than a schoolyard taunt; sometimes clever but always laughable.

    1. Olly – I think Ray works the night shift so I do not expect to see him until much later. I am curious if the IP address goes back to the WH or K Street and some DNC lobby group.

  4. Ray,
    It’s apparent you are of the group of people that will defend the will of government over the will of the citizens. Unfortunately, your ilk are the very folks Gruber relies on to “get stuff done”. You also assume way too much about my posts indicating a defense of government. I was responding to your claim of equivalency with the Reagan and Bush 41 use of executive orders on immigration. Yesterday, I posted a link to the proper role of the President when confronted with legislation that needs to be corrected which you evidently overlooked. Here it is again:


    1. Olly – don’t expect Ray to engage in an actual discussion of the issues. His job is to support Obama and the administration policies, not actually engage in discussion. As you can see by his attack on me, he has memorized Saul Alinsky.

  5. Ray – are you not reading what I am saying. All Executive Orders are unconstitutional. Does that make you feel better.

  6. @Ray

    OMG, you are sooo transparent! Of course Presidents do EO’s. Some Democrats want to count them, and compare the number. But that argument is kind of like a rapist whining that “well, everybody has sex, sooo why are you mad at me???”

    It is the SCOPE of the EO that is important. As I saw somewhere, probably on FOX News. . .(I just threw in the FOX News bit so that your head would spin and you would get green glop on your keyboard). . .anyway, prosecutorial discretion does NOT apply to what Obama is doing because Obama is not just forbearing the prosecution, he is granting affirmative relief in the green cards and temporary visas.

    Sooo, here is you a video to express my opinion of your argument:


    Squeeky Fromm
    Girl Reporter

    1. Did you even bother to read what I wrote in my replies to Oily. Not once have I claimed any of this is about the number of EOs. Not once so I don’t know where you get off claiming I did. I’ll repeat part of the discussion. Reagan and Bush both issued an EO that granted green cards to those that were not covered under immigration reform passed by Congress while Reagan was in office. Obama is now granting green cards to certain groups of undocumented immigrants that would be good for three years. So Obama is taking an action that is exactly like what both Reagan and Bush did. Yet no outrage from the conservative fringe when they did it. If you and others that argue what Obama is doing is unconstitutional then you must argue that what Reagan and Bush did was also unconstitutional or you are hypocritical ideologues.

    2. You do know the congress has 90 days before this goes into effect. All they have to do is PASS A BILL. You know the work for which the taxpayers have been paying them to do, in this most unproductive of all congresses.

      1. leejcaroll – do you actually think that if Congress passes a bill that the President will sign it? The House has been passing bills all along and the Senate has been refusing to bring them to the floor.

        1. “do you actually think that if Congress passes a bill that the President will sign it? The House has been passing bills all along and the Senate has been refusing to bring them to the floor.”

          It would have to be a Bill that is, somehow, satisfactory to current senatorial D’s. And that will never happen unless it is a pre-Obama-approved, right?

  7. Ray – George Washington was making it up as he was going along. He had no model. George got away with things because he was George.
    I have a fair understanding of history having taught it, got A’s in my Constitution and logic classes.

    Then again, all we know about you is that you can talk the Obama party line. I notice that you don’t use the WH link for EOs, which others have used. Someone is thinking ahead.

  8. Ray,
    Have you heard of Jonathan Gruber?

    “Thus, Obama is clearly contravening both ordinary practice and the wishes of Congress—as expressed in statute—by declaring an amnesty himself. This is nothing like Reagan’s or Bush’s attempts to implement Congress’ amnesty. The progressive media’s claims otherwise are blatant lies, relying on their readers’ ignorance of events in the late 1980s and early 1990s. Such attempts should be rejected wherever they are found.”


    1. Just more conservative gibberish to excuse their hypocrisy for not complaining about Reagan and Bush granting immigration relief while crying about Obama doing the same. The fact of the matter here is that it is either Constitutional or not for a President to issue executive orders to the federal agencies directing how they will implement laws, how they will prioritize enforcement of those laws, and how resources will be allocated. The article you link to claims that the legislation from Congress was flawed when Reagan was President so he had to step in and fix it with an executive order. Yet here we have the House and Professor Truly saying it is unconstitutional for Obama to make changes to the ACA in order to make the law work in the long run as intended. Anyone that cannot see the blatant hypocrisy in either seeing both actions as unconstitutional or seeing both as Constitutional is a pure partisan and doesn’t care about logic.

      It was nice of you to post a conservative argument that makes it very clear that what Professor Turly and the House are doing is partisan in the extreme. Thanks for your help in proving this is all about partisan politics and has nothing to do with the Constitution.

      1. Ray – you are aware that two wrongs do not make a right. You really are desparate if you have to reach back to Reagan for a defense for Obama. Geez!!!

        1. Paul as usual just ignores the entire context of my post to go on cheap partisan attacks. He is unable to use facts and history to construct an argument so he tries and attack those that do as partisan and not worth listening to. He really is a pathetic little man and I will no longer respond to him and his games. I suggest others do the same. Freeze this ignorent little man out of the conversation of real adults and he will eventually tire and go away.

          1. Ray – how Saul Alinsky you are in your attack on me. If Saul weren’t dead he would be so proud of you. You hit all the high points. If ad hominem attacks are all you have, you have lost this discussion long ago.
            Some people never realize that ‘NO’ is an answer. You, clearly, are one of them. You have yet to show the absolute necessity for the executive to use executive orders, only linked to a neutral site that they all do it. I do not think they need to do it and shouldn’t. And do not think they should use signing statements. I don’t even think the President needs to pardon the damn turkey at Thanksgiving by Executive Order.

  9. “As Stephen Miller asks: “What’s Obama’s historical legacy if everything he does can be undone via executive order?” Look at the bind he has put his party in. If their entire agenda is enacted by executive fiat, then everything depends on an unbroken string of victories in presidential campaigns.

    One lesson from all those science fiction dystopias is that the dictator’s power grab always breeds discontent and rebellion. In two years, a lot of Democrats could be looking around at the wreckage of their agenda and cursing the day they embraced the temporary illusion of unilateral executive power.”


    1. You know it really gets old to hear this constant crying from conservatives about executive orders. Every single President has used them. And no Obama isn’t using them differently from past Presidents. For example on immigration Obama just signed an executive order allowing some undocumented aliens to stay in this country temporarily. Well gues what so did Reagan and Bush 1. But we didn’t hear this constant crying from the right when they did it. Bush delayed implementation of the Medicare Prescription drug program yet no screaming and crying from conservatives. Obama does something similar with the ACA and all of a sudden we have a partisan driven lawsuit. I’m sorry you conservatives are so driven by your ideology that you can’t see the hypocrisy of your crying about EOs all of a sudden. So how about you quit with the crocodile tears and face history.

      1. Ray – I do not executive orders regardless of who signs them. Did not like it when Reagan did, do not like it when Obama does it. I am also against signing statements. You either agree to follow the law or you veto it. Man up.

        1. Paul, so then you are against it when every single President in our history has issued EOs. Including George Washington. You know the primary General in our revolutionary war. EOs are necessary to carry out the functions of our government and it would be naive to believe they aren’t necessary. Your view on EOs is extreme but then based on your previous comments I’m no suprised as you have shown a serious lack of understanding of history, the law, the Constitution, and the use of reason.

  10. leejcarroll….it also occurs to me, just as a possibility, that Bush 43’s worst action ever, the creation of the Department of Homeland Security, may have been party to interfering with and diluting the messages sent. I have no way of knowing or proving that, but it seems possible to me based upon my experience with DHS and the falsehoods they also tended to fabricate in the cluster-mess of the ridiculous new bureaucracy that they are today.

    One of those things, selected at random, was the idea that federal responders did not arrive in New Orleans for Hurricane Katrina for a week. Begging to differ, but my team was there two days before landfall of Katrina…and no one from NOLA was there to coordinate relief efforts…e.g., the people who know who needs what, when, etc.

  11. leejcarroll …. surprisingly I am not surprised by the GOP findings. They would be in serious violation of security protocols if they had mentioned any details on the emergency notification system extant at all military, CIA, and State Department posts around the world, and operable 24/7. The result would not be worth the breach of the methods used, which would have to be revealed if mentioned as pertinent. I’d agree there was not enough “there there” …. what was there is duplicitous fabrication of stories by fools and clinging to them…liars with pants on fire are not necessarily criminals.

    I’ve mentioned it a couple of times elsewhere, by name, (The Critical Intelligence Communications network, or CRITICOMM) but not by details. It utilizes the Defense Switched Network (DSN) and utilizing encrypted secure messages via late versions of the Secure Terminal Equipment (STU III/STE). In my military and subsequent military “Fed” careers I have prepared messages of this type to be sent by the officer of the day ….those messages are in the President’s hands within 15 minutes, as well as in the hands of major department heads in the CIA, NSA, Pentagon, and the regional commander for the area involved. The messages are not political but simply an accurate relaying of actions on the ground around as experienced by the individuals sending the messages. The video blarney began on the receiving end.

    As I said, being oafish and clumsy with a narrative is still not a crime….thus a finding of no there there.

  12. But it’s all for the greater good; right?

    “In conclusion, I can make you this promise: If you like your weak economy, you can keep your weak economy.” Effects of the Affordable Care Act on Economic Productivity by Casey Mulligan (University of Chicago)


  13. It hasn’t always been the case where our government ruled by precedent; or more specifically the precedent of ignoring the constitutional authority they took an oath to “support and defend”. One would think it of paramount importance to follow the original intent of the architect of the constitution, but then that would require a degree of humility uncommon in today’s political class. This veto by Madison is THE precedent by which our government should function. Here is part of it:

    “To refer the power in question to the clause “to provide for common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.” James Madison’s veto of The Bonus Bill 1817


  14. Congress has to establish that it cannot stop or remedy executive actions through legislation. Additionally, Congress must show it has made a previous attempt to address the executive action (see Goldwater v. Carter and Kucinich v. Obama). Evidence must be presented that any failures are not simply a result of an inability to overcome political opposition to potentially effective remedies.

    Congress has made no attempt to legislatively reverse Obama’s deadline changes, Boehner never had the guts to legislate adherence to the original schedule.

    Swing and a miss…

    1. zedalis – the Congress is not required to change the deadlines it had previously set. That is just silly.

  15. Didn’t know where to put this but the right at some point or another brings up Benghazi as one of the President’s scandals. Well now even the GOP has admitted there is no there there.. How many other “scandals” have also been shown to have no there there such as the IRS only refusing tax exemt status to a democratic group and targeting progressive as well as groups on the right/tea party? Have to wonder if this exercise with going to a politicized SCOTUS will be more of the same. http://www.aol.com/article/2014/11/22/house-gop-report-debunks-benghazi-conspiracy-theories/20997710/?icid=maing-grid7%7Cmain5%7Cdl1%7Csec1_lnk3%26pLid%3D569127

    The Friday report by the Republican-led House Select Committee on Intelligence found no intelligence failure prior to the attacks, no evidence that the White House told the military to stand down during the attack and no evidence that the CIA was involved in related arms shipments. The report did, however, find that the consulate was inadequately protected.

    As for the initial message from the Obama administration that the attack began with a spontaneous protest, the committee did find that inaccurate but blamed unclear intelligence reports, not a purposeful attempt from the White House to mislead.

    The select committee’s report on the Benghazi attack that killed four Americans took two years and thousands of hours of work in Congress.
    (and my addition: they did 8 “investigations” to try and get the result they wanted. How many taxpayer dollars were wasted by the “fiscally responsible” GOP to still come out with the same answer, no “scandal”

  16. Before acting mad, we should read this controversial “circumvention of executive power”…by the way, no one can see the long shot, here?
    In 2 years there will be Presidential Elections…this Act from the White House will last 3 years…no bell rings ??

  17. Here is the biggest issue with this lawsuit. Congress has Constitutional methods for adress what they perceive as overreach of any President. The first method is to pass legislation making clear their intent. Of course the President can veto that legislation and then Congress can either override that veto or not. Second the House can impeach a President they believe has ignored his Constitutional duties with a majority vote. Then we move on to trial in the Senate where it takes 2/3 of the Senators to vote to convict and remove the President from office. Those are the methods that the Constitution provides for restraining a President. Not a lawsuit. In fact the Supreme Court has ruled in the past that Congress does not have standing to sue the President.

    1. Ray – pragmatically impeachment is a non-starter. Even if you succeeded in impeaching Obama you would end up with Biden, who played football too long without his helmet on. Although, this would drive a stake in the heart of the Hillary campaign since Biden would have a head-start on running for President in 2016, so that would be a plus.

      The courts are there to settle disputes between the executive and the legislative, so this is the perfect vehicle for a President in over-reach.

      1. Paul. Below are the duties of the courts as described by the Constitution. Please tell me where it says the courts are supposed to settle disputes between the executive and legislative branch.

        “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

        Like I said the Constitution provides two remedies for when the legislative branch thinks there is overreach. Pass laws or impeach. It makes no difference if you think the next person in line is a non starter.

        1. Ray – this is where the power of the courts lies: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States

          1. Paul, the law has already been held as Constitutional. Congress has no standing to move forward on this case both because they can’t show any personal injury which the Courts have upheld as the standard for lawsuits over and over and also because there are political solutions to this issue as outlined in the Constitution. Finally the Court has upheld the Executive Branches power and responsibility to administer laws and direct resources in doing so. The delay in the employer mandate is exactly the kinds of things the Court has upheld as Constitutional in the past. This entire exercise is partisan driven and Professor Turly is as partisan as they come no matter his protestations. He should be ashamed to draw an esteemed school like GWU into a partisan political stunt like this. Now I’m done debating this issue. I won’t change your mind and you won’t change my mind. But when this is over and done I suspect Professor Turly will get slapped down hard by the courts and then maybe just maybe a few of the conservatives who are chearing this on will realize that they were duped. But of course another million dollars of taxpayer money will be gone in the process to people like the Professor.

            1. Ray – what is going to be used on this lawsuit is less than what it cost to buy the card-stock for the new green cards of the illegal aliens that he is making ‘legal’, And we will have to agree to disagree, I think they have standing, since the President has clearly entered the legislative arena, rewriting federal legislation which is not his purview.
              You know the left is nervous when they have been sending people like yourself over here to try to muddy the waters. That in itself gives me a lot of hope. The regular lefties on here are less hopeful of the cases failure.

              1. So now we see the real Paul. I have been completely respectful in my comments to Paul. I didn’t intitiate a conversation with him. But now that he has provided no facts to back up any of his claims and that I have he decides to attack. President Reagan issued an executive order that changed a recently passed immigration policy yet the conservatives weren’t up in arms over that. Reagan’s EO allowed many to stay in this country that weren’t covered by the recently passed legislation. Yet no accusations from conservatives that Reagan cearly entered the legislative arena. Then to top it off he accuses me of being sent over here by some unknown force of leftists to argue and then that makes hike think the left is nervous and it gives him hope. This man is hyper-partisan, irrational, and possibly delusional. Take a hike Paul.

                1. Ray – I do not approve of executive orders or signing statements regardless of who did it. Didn’t agree with Reagan’s, don’t agree with Obama’s. To agree with Obama on this clearly puts you left of center and we know the WH has been sending the troops out in force. Nice ad hominem attacks. BTW, Reagan is dead.

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