Yesterday’s announcement that the House Republican leadership hired Georgetown Law School constitutional scholar Jonathan Turley to represent the body in a lawsuit against President Barack Obama could mean that the suit will actually be filed.
Turley is the third attorney to sign on to represent the House. David Rivkin, who in conservative journals was arguing that the House should sue the president before Speaker John Boehner embraced the idea, was the first attorney retained. Rivkin, a hard-right partisan who was a torture-denier then torture-apologist during the George W. Bush administration, was also the lead attorney on one of the lawsuits filed against Obamacare.
With Turley, the House moves from partisan true believers to a scholar and a true believer in “the Madisonian System” enshrined in the Constitution.
Rivkin was out by September, when Politico reported clients represented by his firm, Baker & Hostetler, expressed concern that Rivkin had taken on an overtly partisan lawsuit (which seemed odd, as Rivkin’s career has been overtly political.)
To replace Rivkin, House Administration Committee Chair Candice Miller (R-MI) hired Richard Bruck, who had served as special counsel for George W. Bush and outside counsel for the House Committee on Oversight and Government Reform when the committee sued Attorney General Eric Holder.
With Turley, the House moves from partisan true believers to a scholar and a true believer in “the Madisonian System” enshrined in the Constitution.
While Turley, who says he voted for Obama and describes himself as a liberal, often appears on MSNBC, House Minority Leader Pelosi does him (and herself) a disservice when she derides him as “a TV lawyer,” as she did yesterday.
In retaining Turley, the House has enlisted a genuine constitutional scholar, and a litigator who represented Congressional Democrats and Republicans who sued President Obama in 2011 over his intervention in Libya. When I wrote about Turley’s July 16 appearance before the House Rules Committee, I descried his testimony as “magisterial.”
A sample:
I’ve long advocated action by this body to aggressively seek to regain the ground that it has lost over decades. As many of you know, I represented members of this body, Democratic and Republican, in opposing the Libyan war. So given that history, to quote Dorothy Boyd from “Jerry Maguire,” “you had me at hello” when you asked if I think a lawsuit would be a good idea. I do. …
I think it is a good idea to recommit the judiciary to a core function of defining the lines of separation. Indeed, I think that is something all members should ultimately agree on, even if you disagree on the interpretations over the ACA. …
What is important to remember is that people misconstrue the separation of powers regularly. It is not there to protect the institutional rights of the branches. It is there to protect individual liberty. It was created by the framers to prevent any branch from aggregating enough power to be a danger to liberty. It is not about you. It is about the people that you represent. …
Well, it’s a critical difference because, you know, the Madisonian system obviously creates three equal branches, but like “Animal Farm,” some are more equal than others. As a Madisonian scholar, I’ve always said that Congress is the thumping heart of this system. This is where the magic occurs. This is where factional disputes are supposed to be worked into majoritarian compromise. …
And so the very stability of the system happens in Article I, and you can, you can see that reflected in the amount of effort the framers put into Article I, that delicate balance that occurred in the bicameral system. All of that is a reflection of that, of that different function. …
TV lawyers don’t make arguments like that.
Turley has also said that while the suit could be filed in a number of federal district courts, because members of Congress reside in almost every judicial district, it should be filed in the D.C. District Court.
Turley said that judges can be offended by forum shopping, and that it is often harder to get conservative judges to grant standing, the initial hurdle the House will face in its suit against the president.
As Obama prepares to use his executive authority on immigration, retaining Jon Turley could be a game changer in a lawsuit challenging the president’s use of executive authority.
—Lou Dubose
Lou Dubose is the editor of The Washington Spectator.
Ms. Pelosi’s ad hominem slur against the revered Turley is offensive. A Congress rendered dysfunctional by Republican obstructionism has goaded a frustrated President into abuse of the separation of powers. He is wrong to take the bait, just as FDR was wrong to try to pack the Supreme Court when it blocked executive action during another crisis. Whatever the GOP motive in selecting him, Turley will serve the Constitution, the only master a free people bows to.