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
I guess I disagree with most of the posters here. Mr. Turley’s stock has just lost all its value in my portfolio. Is he a closet redneck after all? A tremendous disappointment. So if Congress elects to Do Nothing, the President should just go along and not do anything, either?
To Dust Bunny Queen just above, “I would hope….” This lawsuit is just another cog in the orchestrated campaign to refute and overturn the 2008 and 2012 elections. If the ACA is overturned, the GOP will not offer anything meaningful to replace it. After all, if you are sick and too poor to afford insurance, you deserve your fate. Personal responsibility and all that….
JC: “I offered, in my mind, better avenues to restoring the balance of powers: war authority, spying … .”
Problem is the areas you offered, while they may be more politically appealing, are worse candidates for a Constitutional case because they fall in with Article II powers. As such, healthcare is a cleaner avenue of pursuit.
I’ve also noticed that, at least on his blog, Professor Turley tends to accuse the President of unConstitutional war authority when, in fact, the President has acted on a Constitutional basis. So, healthcare is a safer avenue of pursuit for Professor Turley, too.
SWM, yes that could be true. How much money will it cost taxpayers, especially if they are just ‘using’ this potential lawsuit as a stepping stone?
No one has questioned Professor Turley’s motives or integrity, despite the attempt to imply liberals have done so. That is dishonest and low, but not surprising, considering.
http://www.politicususa.com/2014/10/30/attorney-quits-john-boehner-find-lawyer-sue-obama.html“For the second time in two months, a law firm has dumped Speaker of the House John Boehner and refused to represent House Republicans in their lawsuit against President Obama.
Politico reported,
Attorney Bill Burck and the Quinn Emanuel firm halted preparations for the proposed suit in recent weeks, according to two sources familiar with the situation. Last month, the lawyer originally hired to pursue the case, David Rivkin of Baker Hostetler, made a similar abrupt exit.
A spokesman for Boehner declined to discuss the status of the House’s relationship with Burck and Quinn Emanuel. However, spokesman Kevin Smith said Wednesday evening that House leaders are considering having the lawsuit filed by lawyers already on the House payroll.”
Rafflaw , first understand Nancy’s comment before responding to it. Hope you understand your clients’ better.
@ JC
I would hope that should the SC overturn the subsidies that have been provided NOT by “Exchanges established by the State” that Congress would immediately come up with some law or provision to help out those who depend on the subsidies to get the government mandated insurance.
I just cannot see how they can punish people like yourself who have acted in good faith. It is within the power of Congress to do this…..and I think that they must.
Perhaps in the future, Congress will be more careful about the laws that they are writing. Read the damned thing first! Understand what you are voting on.
Um…yeah….good luck with that Congress not being stupid thingy.
Annie, Who knows if the lawsuit will ever be heard? Boehner is just doing this to calm down the tea partyers. It is his pre-impeachment lawsuit.
on 1, November 17, 2014 at 4:19 pmJim22
JC, How many people have died in the past to protect our freedoms? To answer your question, I guess I would have to say, as many as it takes since without the Constitution and the separation of powers and the freedoms that come from it, our country fails.
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Jim are you seriously saying that if people DIED as a result of this lawsuit it would be JUSTIFIED? Would you sacrifice your child, or your wife or your parents? Good grief Jim. This isn’t a war and the potentially uninsured aren’t yours to use as sacrificial lambs. I don’t know If people will die as a result of this lawsuit, but to suggest that such deaths would be justified is troubling to say the least.
Congratulations and thank you for your service Professor! You are a great example for all of us to follow.
“I’m sure Professor Turley will be acting in a non-poitical way and keeping himself to the heart of the Constitutional arguments.” dust bunny Of course, it is political. House republicans did the hiring.
As much as I disagree with Professor Turley’s outlook I have faith that he is an honest and sincere advocate for the Constitution and the doctrine of the separation of powers.
It is interesting that the liberal commenters have no such faith in the Professor and his integrity.
You should know that he did not take this case to “help the obstructive Republican Congress” but to bring us back to a constitutional framework that this lawless President has thrown away in a manner unprecedented in American History.
Have some faith in the Professor’s integrity.
i wish you every success in this historic endeavor. My only regret is your line that you will have to be “circumspect” in future comments. I fully understand that but we are a little poorer for want of your wisdom.
Folks, I didn’t come here to question anyone’s motives. Nor did I come to argue. What I know, and this is my fear, is that if I lose my subsidized ACA policy, it will be 5 years till I am eligible for Medicare. I don’t know if the cancer in my abdomen can wait that long to continue treatment. I do know that without a health insurance policy, there are no avenues available for meaningful care in my neck of the woods.
Not a scare tactic, or meant to invoke sympathy. Just a simple question for folks to ponder. I won’t continue to either defend myself, or carry on this line of comment.
Maybe Turley can get a guarantee from the House to take action in the event his win results in millions losing access to health care.
thanks again for letting me offer a different view.
-jim
JC – your problem is that you want US to pay for your cancer treatment. That is rather selfish of you.
@ Raf
Well, then we can agree to disagree in a cordial manner 🙂
I’m sure Professor Turley will be acting in a non-poitical way and keeping himself to the heart of the Constitutional arguments.
JC,
Some would say, “The ends justify the means”, which isn’t something to embrace. In this case, I think there are people who would say “The means justifies the ends”. I see much of that here among the commentariat, they want action against the President, whether it be impeachment or a law suit, anything. Professor Turley has said he favors national healthcare. Hopefully one day there will be some sort of national healthcare. Hopefully by the time this lawsuit is over. Hopefully this lawsuit isn’t just an exercise to destroy a Democratic President b a vengeful House and is truly concerned with Presidential overreach. I don’t doubt Professor Turley’s motives, but I do however seriously question the motives of his Republican House. They haven’t proven themselves to be anything but politicaland obstructive.
rafflaw, “Professor Turley’s motives are wonderful, but his clients do not have clean hands.” Ya think. Oh well, he has an entire squad of right wingers cheering him on. 🙂
DBQ,
I disagree that taking the steps that are granted to the Executive are not an over reach, just because John Boehner wants to make political hay over them.
JC, How many people have died in the past to protect our freedoms? To answer your question, I guess I would have to say, as many as it takes since without the Constitution and the separation of powers and the freedoms that come from it, our country fails.
Also, your question is just a scare tactic, since can you provide any stats of people directly killed due to being rejected medical care?
From the article:
“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.”
I am somewhat afraid to find out the answer. If the Court(s) refuse to hear the case for whatever reason, or take the case and rule in favor of the President, I am afraid it will only embolden Presidents to expand the powers.
On another note, isn’t the question with respect to implementation of any parts of the ACA moot given that any provisions the President unilaterally delayed have already been implemented?