Lawyers: GOP deserves day in court

Lawyers supporting GOP efforts to sue President Obama for executive overreach said Wednesday that House lawmakers should get their day in federal court.

Jonathan Turley and Elizabeth Price Foley, both law professors, said at a House Rules Committee hearing that the lawsuit could help reverse a trend that has empowered the executive branch at the expense of Congress.

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Speaker John Boehner (R-Ohio) has accused the president of going too far by delaying the requirement in the Affordable Care Act that most employers provide healthcare for employees.

Turley, a George Washington law professor, said that though he supported Obama and many of his policies, the lawsuit could help Congress reclaim its central role in the federal government envisioned by the Founding Fathers.

“Congress is the thumping heart of the system,” Turley said. “This is where the magic occurs.”

The House Rules Committee is expected to follow up on Wednesday’s hearing next week by considering a measure to authorize the lawsuit. The full House is expected to pass the measure in the last week of July, shortly before Congress departs Washington for its August break.

At Wednesday’s hearing, a pair of lawyers invited by Democrats said the Republicans’ expected lawsuit was itself an overreach and an attempt, they said, to stop the White House from making reasonable adjustments to the law.

The GOP’s frustration with Obama extends far beyond his handling of the healthcare law, stretching into his actions on immigration, environmental regulations and a host of other areas.

Simon Lazarus, who served as adviser to former President Carter, said that the House should respond to those actions by passing laws, not taking the president to court. His statements illustrated the skepticism that many lawyers have about the lawsuit, and whether the GOP can prove the president’s actions have harmed them.

“The president has authorized a minor, temporary course correction,” Lazarus said about the delay of the employer mandate. “As a legal and practical matter, that’s well within his judgment.”

Walter Dellinger, an acting solicitor general under former President Clinton, added that the House’s proposed action would give too much power to the courts, by allowing the judiciary to weigh in on disputes between the executive and legislative branches.

Allowing the House to sue Obama or the president to sue Congress, Dellinger said, “would entrust with the unelected judges the power they should not have in the American system.”

Boehner’s decision to move forward with a lawsuit is just the latest episode in the toxic relationship between congressional Republicans and the White House.

Obama has responded to the lawsuit by mocking Republicans, claiming the GOP is suing him for doing his job while they can’t — or won’t — do theirs.

Democrats on the House Rules Committee backed up those statements on Wednesday, arguing that the lawsuit was an election-year stunt aimed at assuaging conservatives who want to impeach the president.

Rep. Louise Slaughter (N.Y.), the panel’s top Democrat, said the lawsuit essentially put the GOP in the role of backing the Affordable Care Act, which they’ve sought to kill for the last four years.

“This has nothing to do with constitutional law,” said Rep. James McGovern (D-Mass.), another member of the panel. “It has everything to do with politics.”

But Republicans on the committee did their best to tamp down that notion, with Rep. Pete Sessions (R-Texas), chairman of the Rules Committee, insisting the lawsuit was “not a political issue.”

Rep. Virginia Foxx (R-N.C.) added that the litigation might be the best way to limit the power of the bureaucracy, what she termed a growing fourth branch of the government.

Turley, meanwhile, noted that there will be presidents from both parties in the future, underscoring the nonpartisan need to roll back the power of the executive.

“When the executive branch goes beyond its constitutional powers and begins exercising the role of the legislative branch, it is important that the remaining branch of government — the judiciary — play its role in rebalancing the separation of powers,” Sessions said.

Foley, a law professor at Florida International, said that the lawsuit should have standing because the entire House would be bringing it, among other reasons. She also argued that the GOP could have relied on even more aggressive measures to try to rein in the president.

“You may not want to impeach,” Foley said. “You may not want to cut off appropriations for unrelated programs.”