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Legal experts back House suit against Obama 'uber presidency'

A pair of respected legal scholars gave credence to House Republicans’ plan to sue President Obama for exceeding his authority in implementing the Affordable Care Act, warning that such action is needed to defend the system of checks and balances from an “uber presidency.”

George Washington University law professor Jonathan Turley, speaking at a GOP-led House Rule Committee hearing, said the suit, which accuses Obama of materially altering his signature health care law without a congressional vote, is necessary to restore constitutional equilibrium among the branches of government.

"At some point his body has to take a stand.”

- Jonathan Turley, George Washington law professor

“Today’s hearing is a historic step to address the growing crisis in our constitutional system -- a shifting of the balance of power … in favor of a now dominant Executive Branch,” Turley said. “The Legislative Branch has lost the most, with the rise of a type of uber-presidency. Our system is changing in a dangerous and destabilizing way. … At some point this body has to take a stand.”

Elizabeth Foley, a professor at Florida International University College of Law, echoed Turley's concern, and said the suit had an "excellent chance" of succeeding. But two other attorneys expressed doubts, with one saying it could lead to a flurry of lawsuits between co-equal branches.

The draft resolution put forward last week by House Speaker John Boehner, R-Ohio, focuses specifically on the president changing the so-called ObamaCare employer mandate, which postponed some businesses’ legal responsibility to provide health insurance to full-time workers.

“The Constitution states that the president must faithfully execute the laws, and spells out that only the Legislative Branch has the power to legislate,” said Boehne, in announcing his resolution “The current president believes he has the power to make his own laws – at times even boasting about it. He has said that if Congress won’t make the laws he wants, he’ll go ahead and make them himself, and in the case of the employer mandate in his health care law, that’s exactly what he did.”

While the focus of the resolution and intended lawsuit focuses on the employer mandate, House Republicans and their legal witnesses expressed concern that Obama has abused his constitutional authority other times during his two-term presidency.

“The president has instead selectively enforced the law in some instances, ignored the law in other instances and in a few cases changed the law altogether,” said Texas GOP Rep. Pete Sessions, the committee chairman.

However, Simon Lazarus, senior counsel for the Constitutional Accountability Center, was skeptical of the lawsuit, telling lawmakers the changes made to ObamaCare “from a legal and practical standpoint” were “well within” executive authority.

A full House vote on the resolution is expected this month.

The employer mandate was written into the law as a guardrail to discourage employers from shifting workers into taxpayer-subsidized coverage. Under those rules, companies with 50 or more workers must provide coverage or pay a $2,000-per-worker fine. But during the run-up to implementation, the administration gave businesses an extra year to comply with the health care law's requirement to offer coverage.

Obama has called the GOP effort a "stunt" and criticized lawmakers for inaction on legislation, such as a stalled bill to overhaul the nation's immigration system. Congressional Democrats have called the effort a waste of taxpayer dollars.

Boehner’s actions on the lawsuit come as some Republicans are demanding a far more drastic move against Obama. Former GOP vice presidential candidate Sarah Palin and others have called for Obama's impeachment. Boehner said last week that he disagrees with those calls, but asserts that others can make a determination on their own whether the chief executive deserves it.

The Associated Press contributed to this story.