As House Speaker John Boehner, R-Ohio, prepares to bring a lawsuit against President Barack Obama over implementation of the Affordable Care Act, four high profile attorneys were summoned to the Capitol Wednesday to debate legal questions in the case.
The House Committee on Rules heard testimony from two lawyers supporting the lawsuit and two who do not, providing members of Congress and voters with a preview or mock trial of what will will happen in a courtroom if the suit moves forward.
Outside witnesses are a rare spectacle for the powerful rules committee, which decides the terms, or “rule,” under which a bill comes to a vote in the House. As Rep. Tom Cole, R-Okla., put it, “We don’t see this collective display of brilliance and eloquence” often in this committee. This was underscored by the fact that the committee didn’t seem to have enough working microphones for its four witnesses, leading one witness to joke that the taxpayer money that will be spent on the lawsuit should instead go to new equipment.
The impending lawsuit has two layers that the committee’s witnesses addressed: first, whether the House of Representatives has the right or “standing” to sue the president, and second, on the merits of the case, whether the executive branch’s delay of Obamacare’s employer mandate is an unconstitutional power grab.
The first witness in what became a marathon hearing lasting nearly five hours was Jonathan Turley, a law professor at the George Washington University Law School, who argued that Boehner has the case right on the merits. Turley sees the mandate delay as a sign of the growing power of the presidency.
Turley characterized this “uber presidency” as “one of the greatest crises that i expect the members of this committee and this body to face” and said that after decades of executives overstepping their constitutional bounds, “it has reached a tipping point.”
Countering Turley was Simon Lazarus, senior counsel at the liberal Constitutional Accountability Center, who argued that the mandate delays are not the president forgoing the law but actually faithfully executing them, using judgment to make sure they are implemented in the best way possible. Lazarus pointed to similar deadline delays when President George W. Bush implemented the Medicare prescription drug benefit. He said those delays, like the employer mandate delays, were “all are reasonably considered, necessary, temporary adjustments.”
The legality of the mandate delays has had legal scholars on both sides of the aisle scratching their heads. But virtually the entire legal community believes the scales are tipped against Boehner when it comes to the House’s right to sue the president. If Boehner goes to court and wins on this standing question, that would constitute a change in the law that could be more important than the actual merits of the case.
At risk, as an earlier Newsweek report explained, is whether one chamber of Congress or the president can simply sue the other if they disagree with how the other is operating.
The witness making the case for standing was Elizabeth Price Foley, a Florida International University law professor who over the last six months has helped shape the legal basis for Boehner’s lawsuit by coming up with four criteria she thinks would help the lawsuit overcome the standing issue. One of the barriers to standing is that in order to sue in court, an individual needs to suffer a concrete injury.
The mandate delays have not caused a specific injury to any member of Congress. In one of the criteria she sets forth, Foley tries to get around this problem by arguing that the House as an institution has suffered an injury to its institutional power by the president ignoring the deadlines it set out in the law.
Finally, Foley’s opponent on the standing issue was former Acting Solicitor General Walter Dellinger, who dismissed her four criteria by saying simply, “I think that’s not the law.” Instead, Dellinger described standing doctrine as an essential component of the separation of powers between the three branches of government, and backed up his case by quoting from such esteemed conservative legal scholars as Jack Goldsmith, a top lawyer in the George W. Bush administration, and Supreme Court Justice Antonin Scalia. The basis of his argument was that the courts have no place deciding political disputes between the other two branches.
While Republicans on the committee appeared sympathetic to Boehner’s lawsuit, Democrats repeatedly made the point that the suit is a political stunt. “The dividing line in this frivolous lawsuit is not the legislative versus the executive, it is Republican versus Democrat, and I hope that the courts will see that,” said Rep. Louise Slaughter of New York.
Slaughter, the top Democrat on the committee, also worried that the suit would open the floodgates to lawsuits between Congress and the President. To ram home this point, she quoted extensively from conservative writer Andrew McCarthy, who panned the proposed suit at the conservative National Review Online. “We will be subjects of a judicial oligarchy,” she quoted McCarthy as saying. “All future presidents, no matter how lawful their actions, would be subject to vexatious congressional lawsuits.”