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Two of three constitutional law experts testifying before the House Rules Committee on July 16 said essentially that the House of Representatives led by Speaker John Boehner has no grounds to sue President Barack Obama for his alleged “failure to act in a manner consistent with his duties under the Constitution and laws of the United States with respect to implementation of (including failure to implement) any provisions of the Patient Protection and Affordable Care Act and title I and subtitle B of title II of the Health Care and Education Reconciliation Act of 2010.
The hearing was the first step in what is expected to be a multi-part process to initiate or intervene in a lawsuit against President Obama.
Walter Delliger, a partner in the law firm of O’Melveny & Myers, LLP, who is on leave from serving as the Douglas B. Maggs Emeritus Professor of Law at Duke University (and is former Assistant Attroney General and head of the Office of Legal Counsel and acting Solicitor General of the United States) said: “The House of Representatives lacks authority to bring such a suit because neither the speaker or the House has legal concrete, particular and personal stake in the outcome of such actions.
Simon Lazarus, senior counsel to the Constitutional Accountability Center, which is a public interest law firm, think tank and action center dedicated to helping explain and realize the progressive promise of the Constitution’s text and history, concurred:
“Regrettably, I must observe as I did before the House Judiciary Committee in December 2013, that these claims of wayward executive (branch) import the Constitution into what are, in reality, political and policy debates. . . . These claims fault the Obama Administration for making necessary adjustments in timing and matching enforcement priorities with resources and technical, practical, humanitarian, and other exigencies. But exercising presidential judgment in carrying laws into execution is precisely what the Constitution requires.”
Jonathan Turley, the Shapiro professor of public interest law at George Washington University, is concerned that America’s tripartite system of government is shifting dangerously toward an executive branch operating with more dominance.
“I have previously testified on the erosion of the separation of powers in our system, and I have written on that subject both as an academic and as a legal commentator. As those writings reflect, these concerns pre-date this administration. . . . however, the aggrandizement that we saw in prior administrations has continued unabated and, as I have previously stated, it has reached a constitutional tipping point that threatens a fundamental change in how our country is governed.”
With the conclusion of this first hearing, the legislation will be prepared for a vote of the rules committee to determine whether the legislation moves on for consideration by the full House.