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
*Except*
Squeeky, no one is attempt into derail the thread expet maybe you with your comment @ 6:13 PM. I responded to your nonsense. Now feel free to stop addressing me and stay on topic.
So Paul and Jim think that there is nothing at all wrong with indicating that poor people dying because of lack of healthcare is an accepted consequence of resetting the country’s power imbalance? That says a great deal about you two.
Annie – as a M. Sn. you know that people die all the time regardless of their wealth status. Frankly, the only way for Obamacare to work is for it to stop treating people after 75, so you are a goner regardless of how much money you have unless we can get rid of Obamacare.
@Annie
I am not going to help you derail this thread by talking about Hillary Clinton. This thread is about Prof. Turley and the lawsuit against Obama.
Squeeky Fromm
Girl Reporter
Paul C. Schulte
JC –
“How many poor people dying in this country is acceptable as a cost of resetting the balance of powers using the ACA as a whipping post?”
“I would say As many as it takes.”
That is what I said. Annie did her typical response.
Jim22 – Annie can always be depended upon to be Annie-like.
Paul, do you know that even in private health insurance there is risk shifting? .
Yes. That is what is called insurance. There is nothing new about this. Shifting the risk to the insurance company and paying out the claims from the pooled premiums from the healthy and less healthy. That has always been the case for all insurance. Fire, Auto, Medical. Even life insurance. You are shifting the risk that you are going to die at a certain time and the insurance company is betting that you won’t die before you pay in enough premiums to cover your claim or better yet….decide to stop paying at all. (This is why term insurance is a sucker’s bet, unless you only need it for a very short time and only when you are younger)
HOWEVER, in private medical insurance, the participants or insured are voluntarily joining in the pool. Knowing that if you never get sick and never have a claim that your premiums are likely going to be used to pay somebody else’s claim. In private insurance you can also choose the level of coverage that you want or need. It is a voluntary participation.
In ACA we are ALL forced to join and pay for insurance (or pay a penalty/tax) whether we want to or not. We are also told what kinds of insurance we HAVE to buy. We are ALL being forced to shift the risk and shift the money from one group to another. ACA/ Obamacare is not voluntary. It is basically theft and servitude.
Congratulations. I will be following the proceedings.
so why does not John Boner fix the laws like the Dems helped do when Little Bush messed up the prescription drug plan – OH I forgot he swore a blood oath in the Caucus room conspiracy to commit treason and do everything he could to ruin the U.S. and Obama – while you are at it Professor – why not make sure the Caucus Room Conspiracy folks go to Gitmo? Or are you too much of a glory hound and Reich Wing Shill?
captnmike – are you a ‘truther’ too?
Not at all – just someone that watches things a bit and looks at how the truth gets lost with the 0.1% owned “news” media
Paul, do you know that even in private health insurance there is risk shifting? The healthy always pay for the sick in private and public health care models.
Annie – what we appear to have is a pre-existing condition that he wants covered by the rest of us. This is why insurance companies do not want to take on pre-existing conditions.
In any case, Medicaid eligibility can be expanded w/o any of the rest of the ACA. This is pure Grubering.
I wish Jonathan Turley and the House of Representatives well as they work to restrain the over reach of the imperial presidency.
Also from Jackie’s link
Many poor adults remain ineligible for coverage in the 24 states not expanding Medicaid at this time. As of April 2014, eligibility levels for parents are below poverty in 20 of these states and below half of poverty in 12 states (Figure 3, Table 3-3A), and childless adults generally remain ineligible for Medicaid at any income level (Figure 4, Table 3). Overall, among the 24 states not implementing the Medicaid expansion at this time, the median eligibility level for parents is just 49% FPL, with only four (4) states (AK, ME, TN, and WI) covering parents with incomes at or above poverty. Only Wisconsin is providing full Medicaid coverage to adults without dependent children. Parents and other adults with incomes above these limited Medicaid eligibility levels but below 100% FPL fall into a coverage gap; they remain ineligible for Medicaid but do not earn enough to qualify for the premium tax credits for new Marketplace coverage. This gap leaves nearly five million uninsured adults without a new coverage option.4
SO if single adults, male, do not qualify for Medicaid it isn’t because of the male or single status but because of income levels an guidelines.
Yes…..coverage IS worse for single adults. Thanks Obamacare!!!!!
Chapter 6
On the constitution of England
In each state there are three sorts of powers: legislative power, executive power over the things depending on the right of nations, and executive power over the things depending on civil right.
By the first, the prince or the magistrate makes laws for a time or for always and corrects or abrogates those that have been made. By the second, he makes peace or war, sends or receives embassies, establishes security, and prevents invasions. By the third, he punishes crimes or judges disputes between the individuals. The last will be called the power of judging, and the former simply the executive power of the state.
Political liberty in a citizen is that tranquillity of spirit which comes from the opinion each one has of his security, and in order for him to have his liberty the government must be that one citizen cannot fear another citizen.
When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.
Nor is there liberty if the power of judging is not separate from legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor.
All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.
In most kingdoms in Europe, the government is moderate because the prince, who has the first two powers, leaves the exercise of the third to his subjects. Among the Turks, where the three powers are united in the person of the sultan, an atrocious despotism reigns.
In the Italian republics, where the three powers are united, there is less liberty than in our monarchies. Thus, in order to maintain itself, the government needs means as violent as in the government of the Turks; witness the state inquisitors and the lion’s maw into which an informer can, at any moment, throw his note of accusation.
Observe the possible situation of a citizen in these republics. The body of the magistracy, as executor of the laws, retains all the power it has given itself as legislator. It can plunder the state by using its general wills; and, as it also has the power of judging, it can destroy each citizen by using its particular wills.
There all power is one; and, although there is none of the external pomp that reveals a despotic prince, it is felt at every moment.
Thus princes who have wanted to make themselves despotic have always begun by uniting in their person all the magistracies, and many kings of Europe have begun by uniting all the great posts of their state.
The Spirit of the Laws
Charles Louis de Secondat, Baron de la Brede et Montesquieu
1748
Squeeky, what do you think Hillary thinks about this lawsuit? Do you think she would agree with it? Do you think she thinks President Obama is overreaching in his Executive authority? Do you think Hillary will be happy if the ACA would be repealed? You do know she was in favor of a mandate even before Obama was, right? Do you still plan on volunteering for her campaign and voting for her as you stated many times previously? If so why? Cognitive dissonance can be overcome.
@Jackie B.
That’s 2014 data.
So Obamacare screwed it up.
It worsened available care for single adults.
Why does Obamacare hate single poor people?
@ Jackie
Your link doesn’t say what you think it says.
Prior to 2014, 15 of the 27 states implementing the Medicaid expansion already covered parents at or above the poverty level through Medicaid, but only nine (9) states provided full Medicaid coverage to adults without dependent children. In the states implementing the Medicaid expansion in 2014, eligibility levels increased for parents in 16 states and for childless adults in 24 states. Overall, in these states, the median eligibility threshold for parents rose from 106% in January 2013 to 138% FPL as of April 2014, while the median threshold for childless adults jumped from 0% to 138% FPL. As of April 2014, three (3) states (CT, DC, and MN) cover parents above 138% FPL and two (DC and MN) cover childless adults above this level.
Childless adults or single people are covered. They are just not covered to the level that women and children or families are covered in every State and the coverages in each State may be different.
I thought Gruber’s first name was Jonathan?
Characteristics of Medicaid-Eligible Adults: Uninsured vs. Enrolled
…………………………………….Uninsured….Enrolled
Married————————-33.5———-13.1%
Divorced/sep/widowed——-34.2———-34.1%
Never married—————–32.3———-52.7%
“…the uninsured are less likely to have health problems than those enrolled in Medicaid. Among the uninsured, only 13.0 percent report being in fair or poor health and 11.3 percent report limitations in activity…
Consistent with their better health and more limited access to providers, fewer eligible uninsured adults use health care than do Medicaid-enrolled adults.
Why would eligible adults who face health problems and high expenses and perceive that they have inadequate access to health care fail to enroll in Medicaid? Time, hassle, stigma, or lack of knowledge may present substantial barriers.“
on 1, November 17, 2014 at 2:29 pm
Rafflaw, based on the following interactions I thought you did not understand:
rippleton (message from Rippleton)
While I understand the importance of this legal issue, I think it is fair to say that this is also a political battle. I am disappointed to see Mr. Turley accept this case under the current climate in Washington, D.C. in which the first black President has been under constant barrage of ill will by the Republicans. Sometimes, timing is everything.
on 1, November 17, 2014 at 3:35 pm
Nancy (response from Nancy to Rippleton, ;last two words)
rippleton
While I understand the importance of this legal issue, I think it is fair to say that this is also a political battle. I am disappointed to see Mr. Turley accept this case under the current climate in Washington, D.C. in which the first black President has been under constant barrage of ill will by the Republicans. Sometimes, timing is everything. Ridiculous Comment.
on 1, November 17, 2014 at 3:43 pm
rafflaw
Nancy,
I share your concern that this entire lawsuit is for political purposes only. Instead of looking for ways to actually get something done, this Congress, which did nothing to curb alleged Executive overreaches in the previous administration, will use this litigation to further obstruct real business in Washington. Professor Turley’s motives are wonderful, but his clients do not have clean hands.
on 1, November 17, 2014 at 4:50 pm
Observer
Rafflaw , first understand Nancy’s comment before responding to it. Hope you understand your clients’ better.
on 1, November 17, 2014 at 5:12 pm
rafflaw
Observer,
I did understand Nancy’s comments.
Dust Bunny, in many states Medicaid indeed is tested for marital status in many states. Currently, 23 states don’t provide coverage for single, childless adults.
There is no safety net for millions of people in this country.