Skip to content
Archive of posts filed under the Separation of Powers category.

Court Rejects Justice Department Plan to Avoid the Merits of House’s Obamacare Lawsuit

Yesterday Judge Collyer rejected the Justice Department’s motion to certify for interlocutory appeal her ruling that the House has standing to pursue its claim that the Obama administration has illegally spent billions of dollars in “cost-sharing” payments to insurance companies under the Affordable Care Act. The Justice Department had candidly admitted that it wanted an [...]

Immigration: Another Question of Administrative Law Versus Constitutional Faithfulness

Professor Christopher Schroeder asks the following question at Balkinization: Under our constitutional separation of powers, does the President have the authority to defer the deportation of the undocumented parents of children who are lawfully present in the United States, to permit these persons to apply for work authorization and also to expand the Deferred Action [...]

CRS on the Take Care Clause

This September 4, 2014 CRS memo entitled “The Take Care Clause and Executive Discretion in the Enforcement of Law,” (hat tip: Mort Rosenberg) is helpful background for understanding both the House lawsuit against the Obama administration and the controversy over the President’s executive action on immigration. However, as is not uncommon for CRS reports, there [...]

US House of Representatives v. Burwell

You’re welcome. Tweet

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 Declaration of Impotence

On June 25, 2014, the Speaker sent a memorandum to all Members of the House entitled “[T]hat the Laws Be Faithfully Executed. . .” This extraordinary document begins as follows: “For years Americans have watched with concern as President Barack Obama has declined to faithfully execute the laws of our country—ignoring some statutes completely, selectively [...]

The House’s Sovereign Immunity Objection to the SEC Subpoenas

As discussed in my last post, the SEC is suing the House Committee on Ways & Means and Brian Sutter, a committee staffer, to enforce two administrative subpoenas, one to the committee seeking documents and one to Sutter seeking both documents and testimony. A May 19 letter from the House General Counsel lays out 11 [...]

Situation Comity

In her testimony before the Senate Judiciary Subcommittee on Administrative Oversight and the Courts last week, noted Supreme Court advocate Maureen Mahoney urged the panel not to advance pending legislation requiring that Supreme Court proceedings be televised. Among other things, she contended that such legislation would raise “serious constitutional questions” on separation of powers grounds. [...]

Can a Court Resolve the Virginia Senate Deadlock?

Virginia Democrats may go to court over the issue of whether the Lieutenant Governor can break ties on organizational matters in the Senate. As indicated in a previous post, I am skeptical about the merits of this claim. (Another useful resource on this subject is the website of the National Conference of State Legislatures, which [...]