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Archive of entries posted on July 2014

Is a Lawsuit Really the House’s Only Remaining Option?

In response to the argument that the House needed access to the courts in order to protect the separation of powers and its constitutional prerogatives, Representative Slaughter noted “the Founding Fathers gave to the legislative branch the weapons to defend itself without running to the court.” She then proceeded to list these tools of self-defense, [...]

Halbig/King and the House’s Lawsuit against the President

As you have no doubt heard, two circuit courts issued divergent opinions yesterday on the same administrative law question, namely the validity of an IRS rule extending tax subsidies to health insurance purchased on the federal exchange. These decisions nicely illustrate the point I was making in my last post regarding the nature of administrative [...]

The Employer Mandate Delay: A Question of Administrative Law or Constitutional Faithfulness?

With the background of the last two posts, let’s consider whether “the President acted beyond his authority to execute the laws” by delaying the employer mandate, to paraphrase the question asked at the House Rules Committee hearing. Or, rather, let’s separate this question into two. The first is whether the delay of the employer mandate [...]

Who is Responsible for the Employer Mandate Delay?

There were a couple of things missing from the testimony regarding the legal merits of the employer mandate delay at Wednesday’s Rules Committee hearing. The first was any reference to the legal authority claimed by the administration when it announced the initial delay of the employer mandate under the Affordable Care Act. This is surprising [...]

Some Preliminary Thoughts on the House Rules Hearing

Last Wednesday, July 16, 2014, the House Rules Committee held a five-hour hearing to consider a draft resolution “providing for authority to initiate litigation for actions by the President inconsistent with his duties under the Constitution of the United States.” It has been decided, although it is unclear whether this decision has yet been formalized [...]

Would the House’s Sovereign Immunity Position Bar its Suit against the President?

This is a question that should have, but didn’t, occur to me even as I sat through a good portion of yesterday’s House Rules Committee hearing, in which members and witnesses spent five hours arguing over when, if ever, it was permissible for one branch of the government to sue another. Professor Walter Dellinger testified [...]

The Legislator-Lobbyist Privilege?

We all know that there are certain confidential and intimate relationships that the law deems worthy of special protection. These include the clerical privilege (also known as priest-penitent), the attorney-client privilege, the doctor-patient privilege and of course the spousal privilege. The House of Representatives would like to expand that list to include the legislator-lobbyist relationship, [...]

The House All In on Sovereign Immunity

The House Ways & Means Committee has filed its response to the SEC’s enforcement action (see here and here). The House’s brief sheds some, though not much, light on its argument that the doctrine of sovereign immunity bars the subpoenas in question. The House relies primarily on a Second Circuit case, In re SEC ex [...]

U.S. House of Representatives v. Obama: The Problem of Standing

There are a number of reasons why the proposed lawsuit by the House against President Obama is likely to be futile (or worse). Andrew McCarthy does an admirable job of laying many of them out here and here. Today I will address only one issue, the question of the House’s standing, from what may be [...]