A planned House Republican lawsuit against President Barack Obama is justified because his actions carrying out his health care law dangerously exceed his powers, constitutional lawyers backing the litigation told lawmakers Wednesday.
Attorneys allied with Democrats in opposing the election-year suit said it’s the GOP that’s going too far by trying to resolve a political dispute by handing the question to the federal courts to decide.
The lawyers appeared before the House Rules Committee, which is considering Republican-written legislation authorizing the House to file the lawsuit. House Speaker John Boehner, R-Ohio, has said he wants to take legal action because Obama has abused his authority to carry out laws Congress approves, specifically by delaying a health care law requirement that many employers provide medical coverage for workers.
In recent months, Republicans have attacked Obama for taking actions like having the Environmental Protection Agency curb emissions from coal-fired power plants, raising the minimum wage for federal contractors and blocking the deportation of children illegally brought into the U.S. by their parents. GOP lawmakers say their lawsuit is simply an attempt to defend Congress’ powers against a president who they say has made a habit of acting unilaterally to carry out personal policy preferences.
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“This is not a political issue. This is not an issue that should pit Republicans against Democrats,” said Rep. Pete Sessions, R-Texas, the Rules Committee chairman.
“Any person interested in our Constitution and our brilliant system of separation of powers should be worried about what is currently happening in our country,” Sessions said.
Democrats mocked the legal action as a purely political exercise that is doomed to failure but aimed at appeasing conservatives who want to see Obama impeached. The Rules committee’s top Democrat, Rep. Louise Slaughter of New York, called it “preposterous” and noted that in effect Republicans are filing suit over a delay in a part of a law that every GOP lawmaker opposed and that the House has voted about 50 times to repeal or pare back.
“This is a partisan political stunt timed to peak in the House of Representatives in November, right as the midterm elections are happening,” Slaughter said. “The House majority is suing the president simply for doing his job.”
The House is expected to vote on the resolution before leaving for its August recess.
On Wednesday, each party sought ammunition by inviting legal experts to testify.
George Washington University law professor Jonathan Turley, a Republican witness, told the committee that the House has a right and “deep obligation” to protect Congress’ powers.
“It is not a political question when this body goes to court and says the president has exceeded his authority,” Turley said. “If it doesn’t, I think this system is going to change in a very significant and in my view a dangerous way.”
Elizabeth Price Foley, a law professor at Florida International University, disputed Democratic claims that the lawsuit was invalid because Obama has not infringed on Congress’ powers to pass laws. She said Republicans have “an excellent chance” of winning a dispute over the meaning of the constitutional provision that the president “shall take care that the laws be faithfully executed.”
That was countered by attorney Simon Lazarus of the Constitutional Accountability Center, a Democratic witness who said the Constitution gives presidents authority to make reasonable and needed adjustments as laws are translated into government action.
“Exercising presidential judgment in carrying out laws into execution is precisely what the Constitution requires,” said Lazarus. He said GOP claims that Obama has exceeded his powers “import the Constitution into what are, in reality, political and policy debates.”
Attorney Walter Dellinger, a former Clinton administration official, warned that having the courts settle disputes when the president doesn’t administer a law the way the House wants “would be an unprecedented aggrandizement of the political power of the judiciary.”
“Such a radical liberalization of the role of unelected judges in matters previously entrusted to the elected branches of government should be rejected,” Dellinger said.
At one point, Rep. Jim McGovern, D-Mass., cited a February article Foley wrote for the Daily Caller conservative website in which she wrote that based on prior Supreme Court rulings, “Congress probably can’t sue the president.”
“Maybe some of your views have changed,” McGovern told her.
Foley, a one-time congressional Democratic aide who currently advises the conservative James Madison Institute, said her views haven’t changed and said her article was premised on Congress being unable to limit a president’s actions.
She also said she’d found that of 41 previous cases she’d found in which legislators tried suing the executive branch for its actions, 68 percent were brought by Democrats – including Slaughter, who joined a 2006 Democratic suit against President George W. Bush over a budget bill.
Responding to outcries from business groups, Obama has twice delayed the so-called employer mandate section of the 2010 health care law. The law requires companies with 50 or more employees working 30 or more hours a week to offer health care coverage or pay fines. It exempts small businesses with fewer than 50 workers.
The requirement was initially to take effect this year. Companies with 50 to 99 employees now have until 2016 to comply, while bigger companies have until next year.