Obama executive actions seen as threat to Constitution

Republicans file lawsuit in attempt to rein in president

By Stephen Dinan
WashingtonTimes.com

A prominent law professor and avowed supporter of the Obama White House will tell the House on Wednesday that the president has created one of the biggest constitutional crises in the country’s history and will endorse House Republicans’ effort to sue to rein him in.

Jonathan Turley, a professor at George Washington University, will say President Obama is trampling the founders’ vision for the country in his push to circumvent Congress, and he will demand Republicans and Democrats alike forget their party labels to unify against this White House’s power grab.

“What we are witnessing today is one of the greatest challenges to our constitutional system in the history of this country,” Mr. Turley said in a prepared testimony, saying it began with previous presidents but under Mr. Obama has “reached a constitutional tipping point that threatens a fundamental change in how our country is governed.”

The scorching testimony to the House Committee on Rules kicks off what’s expected to be a several-week push by Republicans that will end in the House approving a lawsuit against Mr. Obama, challenging his unilateral decision to ignore or waive parts of his own signature health care law.

Already, the GOP effort is ensnared in politics.

“House Republicans have resorted to their most wild and desperate stunt yet,” said Rep. Louise McIntosh Slaughter of New York, the ranking Democrat on the Rules Committee, who will help lead opposition to the GOP’s lawsuit push.

Some conservative commenters have also opposed the House GOP’s effort, saying Republicans should use the tools the Constitution gives them — chiefly the power of the purse — to fight back against Mr. Obama’s claims of executive authority.

But Republicans, who control the House, have run up against roadblocks in the Democratic-controlled Senate. They want the courts to intervene in part to elevate the fight above election politics and help recalibrate a balance of powers that’s skewed deeply toward the White House in recent decades.

The legislation Republicans plan to push through the House would authorize a lawsuit challenging Obamacare’s so-called employer mandate, which required all medium-size and large businesses to provide insurance to their employees by this year or else face stiff penalties. Claiming prosecutorial discretion, Mr. Obama waived the deadline and penalties.

Republicans argue the law didn’t give Mr. Obama any leeway to issue a waiver, and they said they have no recourse but to ask the courts to step in.

But judges have traditionally been reluctant to get involved unless a party can show it’s sustained an actual injury.

Walter Dellinger, a former top Clinton administration lawyer, will tell the House Committee on Rules that the court’s reluctance is part of the founders’ vision and said it’s a mistake to beg them to take a more active role when the dispute is over routine decisions such as enforcing the employer mandate.

“Never in our history has such a radical change in the role of the judiciary been proposed to deal with such a routine question of administrative process,” he said in his prepared testimony.

He said Congress writes these kinds of laws assuming the administration has the discretion to decide how and when to enforce them.

Democrats on Capitol Hill question why most Republicans remained silent when President George W. Bush made expansive claims of executive power and are only now outraged at Mr. Obama.

Some Obama administration officials have hinted that the president’s race may play a role.

Mr. Turley said he doesn’t believe Mr. Obama has tyrannical impulses or that he’s intentionally trying to subvert the founders’ vision of separation of powers.

He said blame should be spread across all three branches of government: a White House eager to ignore rules in order to get things done, a Congress too weak and riven with partisan divisions to assert itself against presidents of either party and judges who are unwilling to play the role of referees the founders envisioned.

Mr. Turley said he expects the lower courts to duck the fight, ruling Congress doesn’t have standing to sue since lawmakers aren’t suffering an actual injury as the court sees it.

But he urged the House to continue to press, with the Supreme Court likely to eventually get involved, where he hoped the justices would oppose Mr. Obama and reaffirm what he said the founders envisioned.

“It is tempting to embrace rule by a single person who offers to govern alone to get things done. However, this is the very siren’s call that our founders warned us to resist,” he said. “We remain a nation of laws, and we have a court system designed to resolve such controversies.”