Opening Act Ready in House v. Obama

Lawyers on both sides in the GOP’s proposed lawsuit against the president will argue Wednesday before the House Rules Committee.

WASHINGTON, DC - JUNE 18: Speaker of the House John Boehner (R-OH) speaks following a meeting of the House Republican conference June 18, 2014 at the U.S. Capitol in Washington, DC. Rep. Kevin McCarthy (D-CA) is the favorite to be elected to the position of House Majority Leader tomorrow to replace Rep. Eric Cantor (R-VA) who was defeated in primary race last week.
National Journal
Billy House
July 15, 2014, 5:51 p.m.

In an un­likely set­ting for polit­ic­al theat­er””the cramped meet­ing room of the House Rules Com­mit­tee””law­yers for and against Speak­er John Boehner’s pro­posed law­suit against Pres­id­ent Obama will stage a kind of mock tri­al Wed­nes­day to ex­pound upon the plan’s pos­sib­il­it­ies and pit­falls.

Al­though the testi­mony will be equally di­vided between the pros and the cons, the out­come is in­ev­it­able. With a 9-4 ma­jor­ity on the Rules Com­mit­tee, Re­pub­lic­ans are cer­tain to fol­low their lead­er’s sug­ges­tion and write a res­ol­u­tion for the full House to con­sider call­ing for lit­ig­a­tion against the pres­id­ent.

In fact, a draft res­ol­u­tion has already been pre­pared, stat­ing that “the Speak­er of the House may ini­ti­ate civil ac­tions in fed­er­al court on be­half of the House seek­ing de­clar­at­ory or in­junct­ive re­lief” against the na­tion’s chief ex­ec­ut­ive for fail­ing to act “in a man­ner con­sist­ent with that of­fi­cial’s du­ties un­der the Con­sti­tu­tion and laws of the United States.”

For stra­tegic leg­al reas­ons, Boehner says the House will be su­ing Obama spe­cific­ally for delay­ing en­force­ment of the Af­ford­able Care Act’s em­ploy­er man­date last year, on grounds that do­ing so without con­gres­sion­al ap­prov­al vi­ol­ated the Con­sti­tu­tion. But Re­pub­lic­ans have com­plaints ex­tend­ing to Obama’s ex­ec­ut­ive ac­tions more gen­er­ally across a wide ho­ri­zon of areas, from en­vir­on­ment­al to im­mig­ra­tion policy.

The four ex­pert wit­nesses lined up for the Wed­nes­day morn­ing hear­ing are all heavy­weights on con­sti­tu­tion­al law, but the two pro­ponents of the law­suit, Eliza­beth Price Fo­ley and Jonath­an Tur­ley, have been mes­mer­iz­ing Re­pub­lic­ans with the idea for months.

Fo­ley, a pro­fess­or at the Flor­ida In­ter­na­tion­al Uni­versity Col­lege of Law, has been one of the con­sult­ants help­ing Boehner and the Re­pub­lic­ans de­vise their strategy. She is the au­thor of three books, a fre­quent op-ed writer, and serves on the ed­it­or­i­al board of the Cato Su­preme Court Re­view.

Tur­ley is a schol­ar at George Wash­ing­ton Uni­versity Law School whose in­sights have made him a nearly ubi­quit­ous pres­ence as a com­ment­at­or on na­tion­al TV shows. His own cases have run a gamut from rep­res­ent­ing a judge in his im­peach­ment tri­al on the Sen­ate floor to fil­ing a leg­al chal­lenge against the Liby­an war on be­half of 10 mem­bers of Con­gress. He has pre­vi­ously test­i­fied on what he sees as an erosion of the sep­ar­a­tion of powers in our demo­crat­ic sys­tem.

Pre­pared testi­mony by Tur­ley made avail­able Tues­day has him call­ing the GOP law­suit “a his­tor­ic step to ad­dress the grow­ing crisis in our con­sti­tu­tion­al sys­tem””a shift­ing of the bal­ance of power with­in our tri­part­ite sys­tem in fa­vor of a now dom­in­ant Ex­ec­ut­ive Branch.

“While both Con­gress and the courts have lost au­thor­ity over the dec­ades, the Le­gis­lat­ive Branch has lost the most with the rise of a type of über-pres­id­ency,” Tur­ley will say.

In a blog post on Tues­day pre­view­ing the testi­mony, Boehner’s staff echoed that ar­gu­ment and noted that the speak­er has said, “this isn’t about Re­pub­lic­ans versus Demo­crats; it’s about the Le­gis­lat­ive Branch versus the Ex­ec­ut­ive Branch, and above all pro­tect­ing the Con­sti­tu­tion.”

Coun­ter­ing the ar­gu­ments for the law­suit will be two ex­perts tapped by Demo­crats, Si­mon Laz­arus and Wal­ter Del­linger.

Laz­arus, who served as as­so­ci­ate coun­sel to Pres­id­ent Jimmy Carter’s do­mest­ic policy staff, is now seni­or coun­sel at the Con­sti­tu­tion­al Ac­count­ab­il­ity Cen­ter, a pro­gress­ive pub­lic-in­terest think tank and leg­al cen­ter. He will testi­fy that Obama ac­ted ap­pro­pri­ately in post­pon­ing the em­ploy­er man­date in the Af­ford­able Care Act be­cause he was not try­ing to un­der­mine a law he op­posed but was try­ing to im­prove its im­ple­ment­a­tion.

“As a leg­al as well as a prac­tic­al mat­ter, that’s well with­in his job de­scrip­tion,” Laz­arus states in his pre­pared testi­mony.

Del­linger, a former as­sist­ant at­tor­ney gen­er­al and act­ing so­li­cit­or gen­er­al in the Clin­ton ad­min­is­tra­tion, is a part­ner at O’Melveny & My­ers and is on leave from a pro­fess­or­ship at Duke Uni­versity. He will ar­gue, flat-out, that the House lacks the au­thor­ity to bring such a law­suit””es­pe­cially without the Sen­ate””and that pas­sage of the planned res­ol­u­tion “does noth­ing to change that.”

Fol­low­ing are sum­mar­ies of the testi­mony from all four wit­nesses.


“Con­gres­sion­al stand­ing is pos­sible un­der the right cir­cum­stances,” Fo­ley will testi­fy, in­clud­ing in in­stances where no one per­son has been suf­fi­ciently harmed to give them stand­ing to sue. She provides a four-part test for Boehner and Re­pub­lic­ans to es­tab­lish such a right to sue. One part of the test is that “the law­suit should be ex­pli­citly au­thor­ized by a ma­jor­ity of the House; it can­not be a ‘sore loser’ suit ini­ti­ated by an ad hoc group of le­gis­lat­ors.”


Tur­ley be­lieves the Su­preme Court has made “a bloody mess out of stand­ing.” But he ar­gues that pur­su­ing es­tab­lish­ment of re­quired leg­al stand­ing “rep­res­ents one of the most prom­ising means to re­align the three branches.” And he ar­gues that mem­bers of Con­gress do have claim to unique in­jury and to be­ing le­git­im­ate lit­ig­ants.

“To put it simply, they have skin in the game when it comes to an inter-branch fight,” he ar­gues.


Laz­arus will ar­gue that the Obama ad­min­is­tra­tion has not post­poned the em­ploy­er man­date out of policy op­pos­i­tion to the Af­ford­able Care Act, “nor to any spe­cif­ic pro­vi­sions to it.”

Rather, he says Obama has au­thor­ized a “minor tem­por­ary course cor­rec­tion re­gard­ing in­di­vidu­al ACA pro­vi­sions, ne­ces­sary in his Ad­min­is­tra­tion’s judg­ment to faith­fully ex­ecute the over­all stat­ute, oth­er re­lated laws, and the pur­poses of the ACA’s framers.”


Del­linger not only ar­gues that the House does not have stand­ing to sue, but that a law­suit is an ex­treme meas­ure for deal­ing with the ad­min­is­tra­tion.

He will as­sert that Con­gress already has a “full panoply” of oth­er rem­ed­ies at its dis­pos­al to pres­sure the ex­ec­ut­ive branch to­ward its in­ter­pret­a­tion of the law”””not least of which is the power to amend the law to lim­it ex­ec­ut­ive dis­cre­tion.”

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