Will Suing Obama Be a ‘Historic Step’ or an ‘Embarrassing Loser’?

WASHINGTON, DC - JANUARY 28: House Speaker John Boehner (R-OH) walks away after speaking to the media after attending the weekly House Republican conference at the U.S. Capitol January 28, 2014 in Washington, DC. Speaker Boehner spoke on various issues including tonight's State of the Union speech by U.S. President Barack Obama.
National Journal
Billy House
July 16, 2014, 10:31 a.m.

House Re­pub­lic­ans of­fi­cially launched the le­gis­lat­ive pro­cess of su­ing Pres­id­ent Obama at a hear­ing Wed­nes­day, with leg­al ex­perts de­scrib­ing the plan as everything from a “his­tor­ic step to ad­dress­ing a con­sti­tu­tion­al crisis” to “an em­bar­rass­ing loser” in the courts.

From Re­pub­lic­ans, such as Pete Ses­sions of Texas, there is in­sist­ence that truly pro­found is­sues are at stake, with claims that Obama has not been faith­fully ex­ecut­ing his con­sti­tu­tion­al duty to carry out laws passed by Con­gress. As chair­man of the House Rules Com­mit­tee, Ses­sions opened the hear­ing by de­scrib­ing the Re­pub­lic­an ef­fort as seek­ing an ur­gent “re­bal­an­cing” of the sep­ar­a­tion of powers between branches of gov­ern­ment.

But Louise Slaughter, the Rules Com­mit­tee’s top Demo­crat, was some­what less dra­mat­ic in her view, dryly liken­ing any ex­pect­a­tion of the suit’s suc­cess in the courts to Alice in Won­der­land’s “think­ing of six im­possible things be­fore break­fast.” She also de­scribed the leg­al ac­tion as “pre­pos­ter­ous” and a “purely polit­ic­al ex­er­cise” geared to a midterm elec­tion year.

And, giv­en that the Demo­crat­ic-con­trolled Sen­ate is not join­ing in the House’s suit, Slaughter was not alone over the course of the more than four-hour hear­ing in ques­tion­ing how such a law­suit brought by just one of two cham­bers of Con­gress could even be­gin to qual­i­fy as a sep­ar­a­tion of powers mat­ter.

Mean­while, four con­sti­tu­tion­al ex­perts — two called to testi­fy for each side — gave the com­mit­tee their own con­flict­ing views of wheth­er Speak­er John Boehner’s planned lit­ig­a­tion could pass ba­sic leg­al muster. Re­gard­less, the Rules Com­mit­tee, con­trolled by Re­pub­lic­ans, is in­tent on fi­nal­iz­ing lan­guage to a res­ol­u­tion to pro­ceed with the law­suit.

House mem­bers are to vote on that res­ol­u­tion by the end of Ju­ly, be­fore their an­nu­al Au­gust break.

For stra­tegic leg­al reas­ons, Re­pub­lic­ans say their law­suit will fo­cus spe­cific­ally on Obama’s delay of the Af­ford­able Care Act’s em­ploy­er man­date last year. But  they say they are also up­set over a range of ad­min­is­trat­ive ac­tions in areas from en­vir­on­ment­al law to im­mig­ra­tion law.

And as it turned out, the first of­fi­cial pro­ceed­ing re­gard­ing the planned leg­al ac­tion was quite a draw. The Rules Com­mit­tee’s small hear­ing room was jam-packed, and many wan­nabe at­tendees who had lined up early in hopes of get­ting seats had to be turned away. The hear­ing was also web­cast.

In­side, the key con­flict emer­ging was over wheth­er there was any way that the House, either with the Sen­ate or act­ing alone, would have leg­al stand­ing un­der Su­preme Court case law to bring such a suit.

Even the two ex­perts called by Re­pub­lic­ans — Eliza­beth Price Fo­ley, a Flor­ida In­ter­na­tion­al Law School pro­fess­or who has been con­sult­ing with House Re­pub­lic­ans on the leg­al ac­tion; and Jonath­an Tur­ley, a George Wash­ing­ton Uni­versity Law School pro­fess­or — ac­know­ledged leg­al hurdles.

But both also said they be­lieved those obstacles could and should be over­come.

Tur­ley even sug­ges­ted that the hear­ing Wed­nes­day rep­res­en­ted a “his­tor­ic step” to ad­dress­ing what he called a grow­ing crisis in the form of the shift­ing bal­ance of power with­in the three branches of gov­ern­ment in fa­vor of the ex­ec­ut­ive branch. He con­ceded that it will be “very hard as a mat­ter of law to make this cat walk back­ward,” but he said the Re­pub­lic­ans’ law­suit is an ef­fort at “pro­tect­ing con­sti­tu­tion­al ter­rit­ory.”

“An un­war­ran­ted, on­go­ing shift of power in fa­vor of the ex­ec­ut­ive branch” is how Chair­man Ses­sions de­fen­ded the suit in open­ing the hear­ing.

“Branches of gov­ern­ment have al­ways at­temp­ted to ex­ert their in­flu­ence on the oth­er branches, but this pres­id­ent has gone too far,” he said.

But the two law­yers tapped to testi­fy by Demo­crats about the law­suit dis­agreed. One was Si­mon Laz­arus, who served as as­so­ci­ate coun­sel to Pres­id­ent Carter’s do­mest­ic policy staff and is now seni­or coun­sel at the Con­sti­tu­tion­al Ac­count­ab­il­ity Cen­ter. The oth­er was Wal­ter Del­linger, a former as­sist­ant at­tor­ney gen­er­al and act­ing so­li­cit­or gen­er­al in the Clin­ton ad­min­is­tra­tion; he is a part­ner at O’Melveny & My­ers and is on leave from a pro­fess­or­ship at Duke Uni­versity.

On delay­ing the em­ploy­er man­date in the Af­ford­able Care Act, spe­cific­ally, Laz­arus ques­tioned why House Re­pub­lic­ans are at­tack­ing the Obama ad­min­is­tra­tion for go­ing through “a very ex­tens­ive pro­cess with health pro­viders, busi­nesses,” and oth­ers af­fected by the new law, “and mak­ing needed ad­just­ments.”

In fact, Del­linger said the House and Sen­ate could ad­dress on their own any such con­cerns about ex­ec­ut­ive over­reach in these in­stances by ex­pressly passing more-ri­gid dead­lines and oth­er lan­guage in a bill.

“It’s an in­ap­pro­pri­ate re­sponse to have the Su­preme Court re­solve this,” said Del­linger, es­pe­cially with the “House alone go­ing to court.”

Even be­fore the hear­ing, Slaughter re­leased state­ments from con­sti­tu­tion­al-law ex­perts Lawrence Tribe of Har­vard Uni­versity Law School and Charles Tiefer of the Uni­versity of Bal­timore Law School, in which they, re­spect­ively, called the suit “mer­it­less” and “an em­bar­rass­ing loser.”

Slaughter said dur­ing the hear­ing, “There are le­git­im­ate is­sues of ex­ec­ut­ive over­reach — we all know they are there. That’s not what this law­suit is about. [It’s an] elec­tion-year polit­ic­al at­tack that mas­quer­ades as a de­fense of [sep­ar­a­tion] of powers.”

But Ses­sions said the founders knew that “giv­ing one branch the power to both write and ex­ecute the law would be a dir­ect threat to the liber­ties of the Amer­ic­an people.”

“My fear is that our na­tion is cur­rently fa­cing the ex­act threat that the Con­sti­tu­tion is de­signed to avoid,” he said.

Here is the full pre­pared testi­mony from all four of the leg­al ex­perts at the hear­ing:

Eliza­beth Price Fo­ley (wit­ness state­ment)

Jonath­an Tur­ley(wit­ness state­ment)

Wal­ter Del­linger (wit­ness state­ment)

Si­mon Laz­arus (wit­ness state­ment)

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