Can House sue Obama? Legal expert warns of ‘uber’ president usurping power

By Warren Richey

Warning of the danger of an ever-expanding “uber” presidency, a constitutional law scholar urged members of Congress Wednesday to go ahead and file a lawsuit accusing President Obama of exceeding his constitutional authority when he unilaterally rewrote parts of the Affordable Care Act.


“There is a growing crisis in our system – a shifting of power toward the executive,” Jonathan Turley, a law professor at George Washington University, told members of the House Rules Committee.


“It is this body – Congress – that has lost the most in the rise of this uber presidency,” he said.


The issue before the committee was whether the House of Representatives should follow through on a suggestion by Speaker John Boehner that the body hire lawyers and sue Mr. Obama for allegedly violating the constitutionally required separation of powers.


The suit would focus on the administration’s decision to delay until 2015 the Dec. 31, 2013 deadline for implementation of the employer mandate under the ACA.


The mandate requires businesses with more than 50 employees to provide their workers with a government-required level of health insurance or face financial penalties.


The Obama administration postponed the deadline in light of mounting complaints and an array of difficulties in implementation.


Republicans in Congress, who have voted repeatedly to repeal the health-care reform law, complained that the administration ignored the statutory deadline set by Congress and then usurped legislative authority to rewrite that deadline. Critics said the administration should have sought approval from Congress to amend the statute and extend the deadline.


The four-and-a-half-hour hearing Wednesday featured Professor Turley and three other constitutional law experts.


Two supported filing a lawsuit, two others opposed the move.


A central issue is whether lawyers representing Congress would be able to demonstrate that the House had suffered an injury significant enough to confer legal standing to maintain a lawsuit.


To justify a lawsuit, litigants must be able to show they have suffered a real injury that can be addressed by the courts, and that the case is not merely a policy dispute.


“They don’t get to go into court unless they can show they have an injury,” Walter Dellinger, a former acting US solicitor general, told the committee. “What the speaker is getting is a right to go into court without showing any injury,” he said.


Mr. Dellinger said courts have routinely rejected such efforts and that Congress has other means of responding to presidential actions with which they disapprove.


Another analyst, Elizabeth Price Foley of Florida International University College of Law, disagreed with that assessment.


“I believe the House would have standing,” she said, “and an excellent chance to win on the merits.”


Professor Foley said that states have standing to sue to preserve their power, and executive branch agencies have standing to sue to preserve their authority. Why not Congress? she asked.


The Boehner lawsuit, if filed, would ask a federal judge to order the president and members his administration “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 (including a failure to implement) any provision of the Patient Protection and Affordable Care Act.”


Critics of Obama cite a list of alleged abuses of executive power including his administration’s use of discretion in selectively enforcing immigration laws, his conduct of military operations in Libya without congressional authorization, and his decision to swap five prisoners at Guantánamo for a captured US Army soldier in Afghanistan without first consulting Congress as required by law.


Obama has made no secret of his intentions. He has stated repeatedly – even boasted – that if Congress fails to act, he will do so alone.


Democrats in Congress have generally applauded his stance, and several Democratic members of the Rules Committee used the hearing to denounce the speaker’s proposed lawsuit as politically motivated.


“This is a partisan political stunt timed to the coming election in November,” said Rep. Louise Slaughter of New York, the ranking Democrat on the committee.


Despite the list of alleged Obama infractions, House Republicans decided to focus the litigation on a single issue – the ACA deadline.


Turley said the decision to narrow the focus could help lawyers survive the standing issue to address the merits of the case.


He said the arguments Obama is making to support expansive presidential authority are “extreme” and are laying the groundwork for a future president to take actions that Democrats might find odious.


“It is very difficult in constitutional law to make this cat walk backward,” he said.


Dellinger dismissed separation of powers concerns. He said other presidents had used executive discretion to extend deadlines. “That is a garden variety issue that the administration is empowered to resolve, and Congress, if it disagrees, can pass a new law,” he said. 


“If Congress can’t bring itself to pass [a new law],” Dellinger said, “one house [of Congress] shouldn’t be able to pop into the courts and ask the courts to do what Congress itself is either unable or unwilling to do.”


Committee member Michael Burgess (R) of Texas  disagreed with suggestions that the ACA deadline was ambiguous and open to executive discretion.


“The law says the date is Dec. 31, 2013,” he said. “I’m just a simple country doctor, not a constitutional lawyer, but I do understand due dates.”


“This is not just a deadline,” Turley said, it is not just a minor tweaking of the law. He said it involved the delayed reallocation and deployment of billions of dollars throughout the US economy.


“The deadline is not a date on the calendar, it was the date upon which certain [insurance] policies would become unlawful,” he said.


Turley said he personally believed it was a good idea to delay ACA implementation, but it wasn’t the administration’s decision to make. Under the ACA, any change to specific deadlines must rest with Congress, he said.


Simon Lazarus of the Constitutional Accountability Center in Washington said the president was not refusing to enforce the law, or stonewalling. Instead, he was making a good faith effort to phase in the law in a way that would be less disruptive. 


“This lawsuit attacks the Obama administration precisely for going through a very extensive process and making adjustments in the law in response to business concerns,” he said.