Is Obama in big trouble when liberal and conservative constitutional law experts agree he’s out of bounds?

By Mark Tapscott


Political pundits are divided about the merits of House Speaker John Boehner’s lawsuit against President Obama’s employer mandate.


But should the chief executive be worried that two constitutional law experts — one a conservative, the other a liberal who voted for Obama — not only think the suit has merit but will likely succeed?


The two backing Boehner and two constitutional law experts who oppose the suit testified Wednesday before the House Rules Committee.


The uber presidency


Georgetown University Law Prof. Jonathan Turley voted for Obama but in recent months has become perhaps the most visible critic of what he views as a full-blown constitutional crisis.


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“When a president can govern alone, he can become a government unto himself, which is precisely the danger that the Framers sought to avoid in the establishment of our tripartite system of government,” Turley told the rules panel.


In what could well prove to be a prescient warning to his liberal colleagues, Turley noted that “those who remain silent today should consider that, in less than three years, a different president will sit in the Oval Office. That person could use the very same claims to suspend environmental or anti-discrimination laws.”


Who will stop the rain?


Florida International University Law School Prof. Elizabeth Price Foley described four criteria that should be met in order for the House to gain standing for the Boehner suit in the federal courts.


If those four criteria are met, she told the panel, “the court effectively must adjudicate unless it is prepared to accept that it is powerless to preserve the constitutional architecture of separation of powers. If it does not adjudicate, the President will have carte blanche to exceed his constitutional powers …”


Foley also offered this warning for those on the Right who advocate impeachment rather than the Boehner lawsuit:


“Impeachment of a president removes the president from office; it does not force the faithful execution of the Affordable Care Act, or any other law.”


The other side


Arguing against the lawsuit were Simon Lazarus, senior counsel for the Constitutional Accountability Center, and Walter E. Dellinger, an O’Melveny and Meyers partner and former solicitor general of the U.S. 


Lazarus pointed to President George W. Bush’s delay of provisions of the Medicare Part D Prescription Drug program in arguing that Obama’s actions are simply a way of insuring the laws are faithfully executed, as required by the presidential oath of office.


Dellinger argued that Foley’s four criteria are “simply not the law” and cited Supreme Court Justice Antonin Scalia as a conservative jurist in support of his view.


Go here to read the testimony presented by all four of these constitutional law experts. Turley’s is especially valuable in providing the historical background to the Founders’ intentions.