Turley's hiring has drawn some quick derision from the left. House Democratic Leader Nancy Pelosi during a press conference on Tuesday referred to Turley as a "TV lawyer," a dig on his frequent appearances on cable news networks and a suggestion that taking on this lawsuit may be more about publicity than anything.
The House lawsuit was first announced over the summer, as a reaction to the administration's decision to delay enforcement of an Obamacare provision that would require businesses with at least 50 employees to offer health insurance. Democrats say the lawsuit is politically motivated and without merit.
For his part, Turley says that he's been alarmed by what he sees as a creeping power grab by the executive branch, regardless of which party is in the White House. "Our constitutional system as a whole (as well as our political system) would benefit greatly by courts reinforcing the lines of separation between the respective branches," Turley wrote on his blog Monday night, explaining his decision to represent the House GOP.
Turley writes that his suit "has more to do with constitutional law than health care law." And he sides with Obamacare critics on another lawsuit that could undermine the law.
The Supreme Court will next year decide whether the Affordable Care Act allows states with federal-run marketplaces, or exchanges, to access insurance subsidies. Critics say the law explicitly only allows subsidies through exchanges established by the state. The Obama administration and supporters say even if the law's language is murky on this point, an entire reading of the law and congressional history indicate any exchange — regardless of who's running it — can provide subsidies.
Turley says it's clear that Congress prevented subsidies in federal-run exchanges as a way to incentivize states to establish their own. And that the IRS rule declaring otherwise, after most states refused to set up their own, amounts to an executive power grab, he said.
“My support for national health care is immaterial to the merits of the litigation in the Halbig and King cases. Those cases are less about health care than they are legisprudence — the study and interpretation of legislation,” Turley said in an email.
"The absence of the subsidies could present an existential threat for the [ACA] as a whole by allowing millions to be exempted from the program," he continued. "That does not necessarily mean that collapse of the ACA. It means that the solution must be found in new legislation by Congress as opposed to new statutory construction by the courts."