In an unlikely setting for political theater—the cramped meeting room of the House Rules Committee—lawyers for and against Speaker John Boehner's proposed lawsuit against President Obama will stage a kind of mock trial Wednesday to expound upon the plan's possibilities and pitfalls.
Although the testimony will be equally divided between the pros and the cons, the outcome is inevitable. With a 9-4 majority on the Rules Committee, Republicans are certain to follow their leader's suggestion and write a resolution for the full House to consider calling for litigation against the president.
In fact, a draft resolution has already been prepared, stating that "the Speaker of the House may initiate civil actions in federal court on behalf of the House seeking declaratory or injunctive relief" against the nation's chief executive for failing to act "in a manner consistent with that official's duties under the Constitution and laws of the United States."
For strategic legal reasons, Boehner says the House will be suing Obama specifically for delaying enforcement of the Affordable Care Act's employer mandate last year, on grounds that doing so without congressional approval violated the Constitution. But Republicans have complaints extending to Obama's executive actions more generally across a wide horizon of areas, from environmental to immigration policy.
The four expert witnesses lined up for the Wednesday morning hearing are all heavyweights on constitutional law, but the two proponents of the lawsuit, Elizabeth Price Foley and Jonathan Turley, have been mesmerizing Republicans with the idea for months.
Foley, a professor at the Florida International University College of Law, has been one of the consultants helping Boehner and the Republicans devise their strategy. She is the author of three books, a frequent op-ed writer, and serves on the editorial board of the Cato Supreme Court Review.
Turley is a scholar at George Washington University Law School whose insights have made him a nearly ubiquitous presence as a commentator on national TV shows. His own cases have run a gamut from representing a judge in his impeachment trial on the Senate floor to filing a legal challenge against the Libyan war on behalf of 10 members of Congress. He has previously testified on what he sees as an erosion of the separation of powers in our democratic system.
Prepared testimony by Turley made available Tuesday has him calling the GOP lawsuit "a historic step to address the growing crisis in our constitutional system—a shifting of the balance of power within our tripartite system in favor of a now dominant Executive Branch.
"While both Congress and the courts have lost authority over the decades, the Legislative Branch has lost the most with the rise of a type of über-presidency," Turley will say.
In a blog post on Tuesday previewing the testimony, Boehner's staff echoed that argument and noted that the speaker has said, "this isn't about Republicans versus Democrats; it's about the Legislative Branch versus the Executive Branch, and above all protecting the Constitution."
Countering the arguments for the lawsuit will be two experts tapped by Democrats, Simon Lazarus and Walter Dellinger.
Lazarus, who served as associate counsel to President Jimmy Carter's domestic policy staff, is now senior counsel at the Constitutional Accountability Center, a progressive public-interest think tank and legal center. He will testify that Obama acted appropriately in postponing the employer mandate in the Affordable Care Act because he was not trying to undermine a law he opposed but was trying to improve its implementation.
"As a legal as well as a practical matter, that's well within his job description," Lazarus states in his prepared testimony.
Dellinger, a former assistant attorney general and acting solicitor general in the Clinton administration, is a partner at O'Melveny & Myers and is on leave from a professorship at Duke University. He will argue, flat-out, that the House lacks the authority to bring such a lawsuit—especially without the Senate—and that passage of the planned resolution "does nothing to change that."
Following are summaries of the testimony from all four witnesses.
"Congressional standing is possible under the right circumstances," Foley will testify, including in instances where no one person has been sufficiently harmed to give them standing to sue. She provides a four-part test for Boehner and Republicans to establish such a right to sue. One part of the test is that "the lawsuit should be explicitly authorized by a majority of the House; it cannot be a 'sore loser' suit initiated by an ad hoc group of legislators."
Turley believes the Supreme Court has made "a bloody mess out of standing." But he argues that pursuing establishment of required legal standing "represents one of the most promising means to realign the three branches." And he argues that members of Congress do have claim to unique injury and to being legitimate litigants.
"To put it simply, they have skin in the game when it comes to an inter-branch fight," he argues.
Lazarus will argue that the Obama administration has not postponed the employer mandate out of policy opposition to the Affordable Care Act, "nor to any specific provisions to it."
Rather, he says Obama has authorized a "minor temporary course correction regarding individual ACA provisions, necessary in his Administration's judgment to faithfully execute the overall statute, other related laws, and the purposes of the ACA's framers."
Dellinger not only argues that the House does not have standing to sue, but that a lawsuit is an extreme measure for dealing with the administration.
He will assert that Congress already has a "full panoply" of other remedies at its disposal to pressure the executive branch toward its interpretation of the law—"not least of which is the power to amend the law to limit executive discretion."