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

By Billy House


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)