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Speaker Boehner To File Lawsuit Against Obama Over Executive Actions

US-SYRIA-CONFLICT-OBAMA

House Speaker John Boehner has announced that he will be filing a lawsuit against President Obama over what he asserts, and other Republicans have asserted, are extra-Constitutional actions by the President such as executive actions and regulatory changes that have gone around Congress on issues ranging from climate change to immigration:

House Speaker John A. Boehner (R-Ohio) announced Wednesday that he intended to initiate a federal lawsuit seeking to declare President Obama’s executive orders as an unconstitutional power grab by one branch of the government.

Boehner declined to spell out which specific actions would be addressed in the suit, which have included a 2012 decision not to deport children of illegal immigrants and this month’s order to allow the Environmental Protection Agency to regulate carbon emissions from power plants. Those executive orders came after the Republican-controlled House and Democratic-controlled Senate deadlocked on these issues over the past few years, taking no action.

Republicans have argued that the president does not have the authority to issue such orders given that Congress has not supported them. “In my view the president has not faithfully executed the law,” Boehner told reporters at his weekly briefing.

Appearing before Boehner confirmed the plans for the suit, House Minority Leader Nancy Pelosi (D-Calif.) labeled it “a subterfuge” meant to distract from other issues. At the White House, press secretary Josh Earnest said the lawsuit fit with a congressional Republican plan of obstructing the president’s agenda.

“The fact that they are considering a taxpayer funded lawsuit against the president of the United States for doing his job is the kind of step that most Americans wouldn’t support,” he said.

The contours of the lawsuit will likely follow Boehner’s decision three years ago to hire outside legal counsel to defend the constitutionality of the Defense of Marriage Act, which the Obama administration decided not to defend during the landmark gay marriage case that eventually went to the Supreme Court. In that case, also over objections from Pelosi, Boehner and House Republicans spent $3 million paying a legal team led by Paul Clement, a former solicitor general and top conservative lawyer for federal appellate cases.

While it’s difficult to comment on a lawsuit that has yet to be filed, one can reach some conclusions as to what it will entail based upon the arguments that Republicans on Capitol Hill, and conservative pundits, have been making for basically the entirety of the Obama Presidency. I have discussed some of those arguments myself when it came to issues such as Libya and the War Powers Act and the death of Anwar al-Alwaki as well as the general issues surrounding the “Imperial Presidency” as it existed both before Obama became President and after he took office. Most recently, though, the argument that is likely to form the basis of Boehner’s lawsuit was set forth by George Will in a column entitled “Stopping A Lawless Presidency:” 

Serious as are the policy disagreements roiling Washington, none is as important as the structural distortion threatening constitutional equilibrium. Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different.

Regarding immigration, health care, welfare, education, drug policy and more, Obama has suspended, waived and rewritten laws, including theAffordable Care Act. It required the employer mandate to begin this year. But Obama wrote a new law, giving to companies of a certain size a delay until 2016 and stipulating that other employers must certify they will not drop employees to avoid the mandate. Doing so would trigger criminal perjury charges; so he created a new crime, that of adopting a business practice he opposes.

Presidents must exercise some discretion in interpreting laws, must have some latitude in allocating finite resources to the enforcement of laws and must have some freedom to act in the absence of law. Obama, however, has perpetrated more than 40 suspensions of laws. Were presidents the sole judges of the limits of their latitude, they would effectively have plenary power to vitiate the separation of powers, the Founders’ bulwark against despotism.

Congress cannot reverse egregious executive aggressions such as Obama’s without robust judicial assistance. It is, however, difficult to satisfy the criteria that the Constitution and case law require for Congress to establish “standing” to seek judicial redress for executive usurpations injurious to the legislative institution .

Courts, understandably fearful of being inundated by lawsuits from small factions of disgruntled legislators, have been wary of granting legislative standing. However, David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe that standing can be obtained conditional on four things:

That a majority of one congressional chamber explicitly authorizes a lawsuit. That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’s power.

Hence the significance of a House lawsuit, advocated by Rivkin and Foley, that would unify fractious Republicans while dramatizing Obama’s lawlessness. The House would bring a civil suit seeking a judicial declaration that Obama has violated the separation of powers by effectively nullifying a specific provision of a law, thereby diminishing Congress’s power. Authorization of this lawsuit by the House would give Congress “standing” to sue.

Leaving aside the merits of the policy arguments behind the Presidential actions that Will talks about here, there is are legitimate concerns about how the President goes about achieving those results in a manner that tends to enhance the power of the Presidency at the expense of the legislature. Even when the actions themselves appear to be supported by a good faith argument based on existing law, they have the unfortunate tendency of contributing to the historical tendency for the Office of the Presidency to accumulate unchecked power in the manner that Gene Healy described in his excellent book The Cult Of The Presidency, which is available from Amazon and as a free book in electronic format.  Healy also wrote a a follow up called False Idol: Barack Obama And The Continuing Cult Of the Presidency, which is available in e-book format. As Healy notes in his book, the American Presidency has strayed far from what it was intended to be, mostly at the expense of the power of the legislature. In many cases, of course, this has happened with the implicit or actual consent of Congress itself. However it happened, though, it is a serious issue that has done much to pervert the structure and functioning of government in the United States and, in some sense, it is good to see Congress waking up to the issue even though, admittedly, this is as much motivated by partisanship as anything else. At the same time, though, I am not sure that this lawsuit is going to accomplish much of anything.

As will notes above, the Federal Courts have been historically reluctant to put themselves in the middle of what amounts to a political dispute between the Executive and Legislative Branches. This is one reason why lawsuits that have been filed by members of Congress over issues such as the War Powers Act and other matters have generally been dismissed as political questions. At some point, of course, the Court does have to deal with some of these issues, the most notable such case being the challenge to the President’s Recess Appointment power currently pending before the Court which may be handed down as soon as tomorrow morning.In those situations, though, the Courts have generally required a Plaintiff that has some injury rather than someone who is merely filing a lawsuit to get what the law often calls “advisory opinions.” Notwithstanding the arguments that Will cites above, I have doubts that a lawsuit in the name of the Speaker of the House, the House of Representatives, or however it will be styled would be sufficient to satisfy the Court’s standing requirements. In that case, the lawsuit would be dismissed without even ruling on the merits, although its likely that we’ll see any such ruling appealed to higher courts. Any such process would take years, perhaps longer than the President is in office, and if the Federal Courts do ultimately agree to rule on the merits of the suit, then a final ruling will take even longer. If the case is still pending when the President leaves office in January 2017, then it will be legally moot, however, and I’m not sure why a Court would allow the case to go forward.

The lawsuit that Boehner is talking about here could raise important issues that need to be discussed and dealt with, and if that’s the case then perhaps that will be the real benefit it serves. As a legal matter, though, I’m fairly skeptical that it will amount to much of anything.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. EddieInCA says:

    Awesome!

    Can’t wait.

    Like or Dislike: Thumb up 5 Thumb down 0

  2. MikeSJ says:

    Wow!

    This is a really big deal!!!

    You better start sending those checks to the Republicans this second!!!

    Send that money NOW!

    Like or Dislike: Thumb up 12 Thumb down 0

  3. C. Clavin says:

    As a legal matter, though, I’m fairly skeptical that it will amount to much of anything.

    Just another case of Republicans wasting more time and money for naught.
    But they should have at it…it’s not like they’re doing anything else productive.

    I’m no legal scholar but I have a hard time imagining the Judicial Branch getting involved in what is really nothing more than a petty partisan pissy-fit between our do-nothing Congress and the Executive.

    Isn’t George Will the guy that pathologically lies about Climate Change and trivializes Sexual Assault? I have a hard time taking anything that nut-job says seriously.

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 5

  4. michael reynolds says:

    This is more of the same from the Republican Congress.

    Let’s get something straight here: no one can take power away from Congress. No one has taken power away from Congress. Congresses since the Vietnam era have been handing over power, surrendering power.

    Why? Because with power comes responsibility and accountability.

    Congresses of both parties have become increasingly allergic to taking on their mandated role. This lawsuit won’t change that. It’s just too easy to snipe and whine and avoid doing the hard things that earn you a primary challenge or even an electoral defeat.

    If Congress wants to step up, let them. Let them pass realistic budgets. Let them address hard issues like immigration. Let them decide what should be done in Iraq.

    Don’t hold your breath.

    Highly-rated. Helpful or Unhelpful: Thumb up 39 Thumb down 3

  5. legion says:

    And he _swears_ it has nothing to do with impeachment…

    Like or Dislike: Thumb up 9 Thumb down 2

  6. Kari Q says:

    I’m worried that this might get in the way of their 237th vote to repeal the ACA.

    Seriously though, I really have mixed emotions about this. On the one hand, I know that the Republicans aren’t really serious about rolling back the powers of the presidency – after all, there will be a Republican president again some day and they will want him to have nearly unlimited powers (if history serves as a guide).

    On the other hand, I do think the presidency is getting too powerful and it would be nice to see some serious attention to this issue and some limitations placed on what the president can do. If I thought it was anything other than political grandstanding, I’d be glad to see it.

    Like or Dislike: Thumb up 9 Thumb down 1

  7. grumpy realist says:

    Doug–a very good and dispassionate analysis. Thanks for writing it.

    From what I remember from my legal reading, yeah, SCOTUS really doesn’t like to get into a pissing match between Congress and the POTUS.

    And yes, Congress is coming off as a gaggle of whiny four-year olds miffed because they left their toys lying around and someone else at the playground walked off with them.

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 0

  8. LAgraves says:

    I asked my Father/lawyer/GOPer what could possibly justify a lawsuit against Obama, and he said nothing, and he also said that an impeachment is the only proper legal way to go after Obama, but laughed at that idea as well. What say you?

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 0

  9. sam says:

    “The lawsuit that Boehner is talking about here ”

    This lawsuit is being filed because the House GOP doesn’t have the balls to do what in fact it should do constiutionally if it believes what it says: Impeach the president. They won’t impeach the president because they know such an effort would fail of conviction in the Senate — and completely eff up what chances the GOP has in 2016 of winning the Senate and the presidency. And in full view of the American people. Better to skulk off to some courthouse where the cameras are not.

    They are a pack of hypocritical cowards.

    Highly-rated. Helpful or Unhelpful: Thumb up 25 Thumb down 1

  10. anjin-san says:

    Obama is guilty of governing while black…

    Hot debate. What do you think? Thumb up 18 Thumb down 5

  11. al-Ameda says:

    The contours of the lawsuit will likely follow Boehner’s decision three years ago to hire outside legal counsel to defend the constitutionality of the Defense of Marriage Act, which the Obama administration decided not to defend during the landmark gay marriage case that eventually went to the Supreme Court. In that case, also over objections from Pelosi, Boehner and House Republicans spent $3 million paying a legal team led by Paul Clement, a former solicitor general and top conservative lawyer for federal appellate cases.

    All of that really worked out well for Republicans.

    As for this stunt? Next best thing to impeachment, right?
    Again, this is what Republicans do.

    Like or Dislike: Thumb up 8 Thumb down 2

  12. steve says:

    The problem lies mostly with a supine Congress. They need to pass real laws and not just act as a rubber stamp for whichever President they agree with. (I suspect many people will miss the irony of a Congress that cannot work together but will somehow supervise/lead the Iraqi people to govern themselves in a unified manner.)

    Steve

    Like or Dislike: Thumb up 11 Thumb down 1

  13. EddieInCA says:
  14. Gustopher says:

    I think that this means Boehner doesn’t have the balls to go for impeachment, but feels he needs to do something to mollify the crazy crowd in his caucus.

    Like or Dislike: Thumb up 13 Thumb down 0

  15. Dean says:

    Let’s say the Republicans vote for impeachment and it actually passes. (Even though chances are zero). It still would not address the issue of limitations on or provide clarity on presidential power that a lawsuit would.

    As citizens, we should all be concerned when a president keeps pushing the boundaries on the separation of powers. I think President Obama has and a case could made that President Bush did as well. Republican motives aside, if it goes unchecked, will it get out of control and we will find ourselves with an imperial presidency?

    From my perspective, I may like it when my party has the White House, but I’m not as comfortable with the same rules when the other party is in the White House. Consequently, I think judicial involvement may be essential in the long run.

    Like or Dislike: Thumb up 6 Thumb down 0

  16. OzarkHillbilly says:

    If George Will said it, I know it is stupid. This is a lawsuit going nowhere. Fast. I don’t know what Boehner’s end game is but I hope it is better than the one he voted for in Iraq.

    Like or Dislike: Thumb up 6 Thumb down 1

  17. C. Clavin says:

    What’s the calculus here?
    It’s going nowhere.
    So is it about fundraising?
    Rallying the base? Congress has never been more unpopular. Does Boehner think this will change that?
    I can’t quote polling…but my sense is that most Americans want Government to actually function for a change. This ain’t helping that .
    If Biehner doesn’t want Obama to take executive action on immigration then he should do something about immigration.
    If Boehner doesn’t want Obama to take executive action on LGBT discrimination then he should do something about LGBT discrimination.
    Same with everything else he has his panties in a twist over.
    That’s the solution… Not a pointless lawsuit.
    Unless the lawsuit is only about fundraising and rallying the base…grifting the dupes.

    Like or Dislike: Thumb up 6 Thumb down 1

  18. dazedandconfused says:

    I feel sure the Supreme Court is eager to Mommy-sit between Congress and the Executive branch. The fun one could have doing that is hard to imagine!

    Like or Dislike: Thumb up 1 Thumb down 0

  19. Jenos Idanian #13 says:

    I said earlier that there were alternatives to impeachment of Obama to check presidential abuse of power. This is one of them.

    Another would be impeachment of lesser officials. Eric Holder, for one.

    @michael reynolds: Let’s get something straight here: no one can take power away from Congress. No one has taken power away from Congress. Congresses since the Vietnam era have been handing over power, surrendering power.

    Close, but not close enough to not be bullshit. Congress hasn’t handed over power; presidents have taken it, and Congress hasn’t protested (or protested strongly enough). This is one of the ways Congress has pushed back. Another example would be the War Powers Act.

    Poorly-rated. Helpful or Unhelpful: Thumb up 2 Thumb down 17

  20. An Interested Party says:

    I said earlier that there were alternatives to impeachment of Obama to check presidential abuse of power. This is one of them.

    Or perhaps those in Congress could, you know, legislatively do what they are supposed to do…but, as noted above, that would require them to do unpopular things and risk not getting reelected and, of course, the loons don’t have enough votes to do what they really want…

    Like or Dislike: Thumb up 7 Thumb down 1

  21. dennis says:

    @Doug Mataconis: Thank you, Doug, for that analysis.

    @David in KC: Go stuff it.

    Like or Dislike: Thumb up 0 Thumb down 3

  22. anjin-san says:

    @ Jenos

    This is one of them.

    Even Fox News talking heads are saying that this is idiotic – no surprise then that you are on board.

    Like or Dislike: Thumb up 6 Thumb down 1

  23. dennis says:

    @anjin-san:

    I just watched a video of Michelle Bachmann declare — several times — that Congress needs to defund the Executive Branch. They’ve gone way past idiotic, anjin …

    Like or Dislike: Thumb up 13 Thumb down 1

  24. C. Clavin says:

    @Jenos Idanian #13:

    This is one of the ways Congress has pushed back.

    With pointless stunts to excite dupes like you???
    That’s some impressive pushing.
    Dupe.

    Like or Dislike: Thumb up 7 Thumb down 4

  25. KM says:

    @Jenos:

    Congress hasn’t handed over power; presidents have taken it, and Congress hasn’t protested (or protested strongly enough).

    True enough. Nature abhors a vacuum – you can’t abdicate power and expect to come back to find nobody’s stepped up in your place. The world doesn’t stop because one refuses to play the game. Exact who does Congress think is going to handle things if they don’t – that America will just stick its head in the sand and wait till they can get their collective asses in gear? Congress has basically in absentia for many years now in terms of leadership. Somebody’s gotta be in charge, then – might as well be the President. Like a CEO who runs the show when the Board of Directors is screaming at each other to actually hand out decisions.

    Congress never officially handed over anything. But to pretend they just got jacked (and let it happen repeatedly, no less) is deceitful.

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 0

  26. OzarkHillbilly says:

    Reality. Check out the graph. Judges surely will.

    Like or Dislike: Thumb up 0 Thumb down 0

  27. Jenos Idanian #13 says:

    @C. Clavin: Hey, Cliffy, you skipped out on the impeachment thread! You left without even a “douche-fvck” after I challenged you.

    A day without a lame personal insult from you is like a day without sunshine, Cliffykins…

    Like or Dislike: Thumb up 1 Thumb down 9

  28. C. Clavin says:

    Boehner…eternally concerned about the deficit…spent over $2M fighting for the DOMA when Obama decided to stop defending it. (The tyrant king…picking and choosing which laws to enforce) Then the SCOTUS struck down DOMA.
    Now Boehner is going to waste more money…chasing a hare-brained frivolous lawsuit…something Conservatives are against, but apparently Republicans are not.

    Like or Dislike: Thumb up 3 Thumb down 1

  29. C. Clavin says:

    @Jenos Idanian #13:
    Every time you start to type a comment…imagine me rolling my eyes and saying what an ignorant buffoon you are…the dumbest mother-f’er on the planet without doubt. And a liar to boot.
    That’ll save me the effort.

    Like or Dislike: Thumb up 1 Thumb down 2

  30. Fog says:

    -sigh- If this lawsuit helps clarify the limits on executive power, there could be some good in it. If the ODS crowd succeeds in hamstringing Obama, wouldn’t they also be hamstringing subsequent Republican presidents?

    Like or Dislike: Thumb up 7 Thumb down 0

  31. David in KC says:

    @dennis: I just think it’s a little crass to thread jack a blog post by James requesting that Doug do a post on something unrelated to Jame’s post, especially when there are multiple ways to reach out to Doug and request that he looks at the issue. It’s one of my pet peeves.

    As to this particular issue, until such time as the lawsuit is filed, I don’t see a thing of real value that can really be analyzed. There are some major hurdles (standing and the court falling back on this as a political question) that really can’t be addresses until we see the complaint.

    Like or Dislike: Thumb up 0 Thumb down 0

  32. Jon Marcus says:

    @Jenos Idanian #13: Congress hasn’t handed over power? You have to go back to the War Powers Act (of 1973) to document that nonsense. Yeah, immediately post-Watergate there was some congressional pushback against presidential power. But that was over 40 years ago.

    Today, there’s the AUMF, where Congress absolutely did hand over power to the president. (Yeah, I know. It was a Republican president, so that doesn’t count.) Obama has called for the repeal of the AUMF. Congress has yet to do that.

    You call bullshit Michael Reynolds. I call projection on your call of bullshit.

    Like or Dislike: Thumb up 4 Thumb down 0

  33. grumpy realist says:

    @Jenos Idanian #13: If this lawsuit never gets anywhere and gets thrown out at the first gate, what good is it?

    Maybe Boehner thinks that there actually is a question of authority and that this will somehow get before SCOTUS so that they can judge. Maybe. Maybe he thinks it’s a question that SHOULD be judged by SCOTUS. But he’s forgetting the second half of the equation: he’s got to get enough legal momentum behind him to get SCOTUS interested. Which means getting the ABA and other legal organizations willing to back him up and help him make the argument that SCOTUS really should step in, that this is something more than the ordinary political pissing match between Congress and the Executive branch.

    He hasn’t made that argument, which is why this will be bounced at the first gate.

    Like or Dislike: Thumb up 1 Thumb down 0

  34. dennis says:

    @David in KC:

    I’m a crass kind of individual. That notwithstanding, the thread didn’t get “jacked;” mine was the only off-topic post (as though no one has ever posted an OT item), and I didn’t expect any response to it, least of all your busy-body response.

    Again, go stuff it.

    Like or Dislike: Thumb up 0 Thumb down 0

  35. dennis says:

    @David in KC:

    Which reminds of a favorite joke:

    Little Johnny was sitting on a park bench, eating candy and drinking soda. The parish priest happened by, saw Little Johnny and sat down next to him. “Hey, Johnny, that sure is a lot of candy you’re eating. You know, your teeth can fall out of your mouth eating too much candy.” Little Johnny says, “Yeah? Well, my grandfather lived to be 105-years-old!” The parish priest asked, “Oh, did your grandfather eat a lot of candy, too?”

    Little Johnny replied, “No. He minded his own f***ing business.”

    Like or Dislike: Thumb up 3 Thumb down 3

  36. Jenos Idanian #13 says:

    @Jon Marcus: Congress hasn’t handed over power? You have to go back to the War Powers Act (of 1973) to document that nonsense.

    “Handed over” is an active term. It requires Congress to pass a bill that grants power to the president previously held by Congress. The example you cite — the AUMFs — could be argued as such, as it gives the final decision of war to the president, but it’s pretty much an adaptation of the letter of the law to the realities of modern circumstances.

    In the early days, if we were considering going to war with someone, they wouldn’t know for weeks or longer. So there was little chance of a pre-emptive strike. Nowadays, just hearing that the US is considering going to war gets around the world in seconds.

    And even then, while Congress could declare war, it was up to the president to wage the war. If a president, as Commander in Chief, didn’t want to go to war, he was under no obligation to do so. Congress could pass other laws to compel him to act, but the simple declaration of war didn’t create any obligations on the president.

    With the AUMF, Congress gave the president the authority to wage war, but not the obligation. Different terminology, same effect. And Congress can repeal the AUMFs, just like they can repeal a declaration of war.

    Like or Dislike: Thumb up 1 Thumb down 3

  37. Jenos Idanian #13 says:

    @C. Clavin: Every time you start to type a comment…imagine me rolling my eyes and saying what an ignorant buffoon you are…the dumbest mother-f’er on the planet without doubt. And a liar to boot.
    That’ll save me the effort.

    If you have no intention of actually attempting to have a reasonable discussion with me, Cliffykins my dear “douche-fvck,” (and regardless of whatever excuses you want to muster, we both know it’s because you’re too stupid to even fake it) then why don’t you simply ignore me? Why pollute up the thread and irritate the other readers with your petty and trite blathering?

    Oh, and the Supreme Court just struck down unanaimously Obama’s illegal “recess appointments.” Now that we have the final word on that, will you actually acknowledge how stupidly wrong you were there, too?

    Thought not.

    Like or Dislike: Thumb up 2 Thumb down 4

  38. KM says:

    @Fog:

    -sigh- If this lawsuit helps clarify the limits on executive power, there could be some good in it. If the ODS crowd succeeds in hamstringing Obama, wouldn’t they also be hamstringing subsequent Republican presidents?

    I see absolutely no problems with clarifying or limiting executive power. That is a very good thing – all branches should have periodic reinforcements of their limits, duties and responsibilities. However, there are Constitutional structures and procedures in place not to mention that its, you know, Congress and they can pass laws and stuff. This is a perfect demonstration of the problem – Congress not doing what Congress is supposed to do and shuffling off responsibility to another branch (Judicial this time).

    This whole thing just smacks of passive-aggressiveness and yelling for Mom when your brother ate the sandwich you forgot and abandoned on the counter 4 hours ago. It’s very visibly petty and circumventing established protocols.

    Like or Dislike: Thumb up 11 Thumb down 0