House Lawsuit Against Obama Hits Another Snag

At this rate, it's unlikely the House will file any kind of lawsuit against President Obama until 2015, assuming it ever files anything.

Obama-Boehner-sour-2

Less than a week ago, I noted that the lawsuit against President Obama had still not been filed notwithstanding the fact that it had been authorized at the end of July and that House Leadership had said it would be filed before the midterms. In part, the delay was necessitated by the fact that the initial law firm that House GOP Leadership had hired to handle the case had backed out after negative reaction from long standing clients. In addition, though, it seemed apparent that the realization had set in that filing before the midterms could end up back firing on the GOP, and that the grounds for the lawsuit were not very strong to begin with. Now, the lawsuit  has hit another snag:

House Speaker John Boehner’s still-unfiled lawsuit against President Barack Obama for exceeding his constitutional power is in more trouble.

For the second time in two months, a major law firm has ceased work on the lawsuit, sources say.

Attorney Bill Burck and the Quinn Emanuel firm halted preparations for the proposed suit in recent weeks, according to two sources familiar with the situation. Last month, the lawyer originally hired to pursue the case, David Rivkin of Baker Hostetler, made a similar abrupt exit.

A spokesman for Boehner declined to discuss the status of the House’s relationship with Burck and Quinn Emanuel. However, spokesman Kevin Smith said Wednesday evening that House leaders are considering having the lawsuit filed by lawyers already on the House payroll.

“The litigation remains on track, but we are examining the possibility of forgoing outside counsel and handling the litigation directly through the House, rather than through law firms that are susceptible to political pressure from wealthy, Democratic-leaning clients,” Smith said.

Boehner’s office also suggested the suit, which planned to challenge Obama’s failure to implement aspects of his health care reform law, could be broadened if Obama goes forward, as promised, with plans for executive action on immigration.

“We are also closely following what the administration does on executive amnesty, and the possible impact that could have on the litigation strategy,” Smith said.

A House leadership aide said if the immigration issue is litigated it would be in addition to, and not in lieu of, challenging Obamacare.

Burck declined to comment about the status of the litigation. The contract he signed with the House last month bars his firm and its employees from speaking to the media about the litigation without prior approval from the House General Counsel Kerry Kircher.

Moving the litigation in-house could also help quiet a regular line of criticism from Democrats: namely that Republicans are wasting taxpayer funds on a lawsuit against the president. Lawyers at both firms were to be paid up to $500 an hour for a total of up to $350,000 for the first stage of the case.

(…)

A new resolution and a new vote would likely be required if the suit were expanded to matters other than Obamacare, such as immigration.

Lawyers involved in discussions about the planned lawsuit said they originally expected it to be filed in September, but POLITICO reported last week that it was unlikely the case would be filed before the election. Some cited the turmoil on the legal team, while others said they suspected a decision to deliberately lower the profile of the lawsuit in advance of the midterms.

In addition, a Congressional Research Service report completed in September and published Friday by two liberal lawyers in the Washington Monthly indicated that a suit focusing on delayed enforcement of some aspects of Obamacare was likely to get little traction in the courts.

Some Democratic lawyers and a few Republican attorneys have said they believe it’s possible no suit will ever be filed.

At this point, I wouldn’t be surprised if that’s what actually happens. The point at which the underlying claims against the President that would be included in the lawsuit that is authorized by the resolution passed in July, in addition to being incredibly weak are also approaching the point where they are likely to be moot by the time any Court would get around to actually considering the merits of the case. More likely than not, it would take at least a year for the question of whether or not the House even had legal standing to sue the President to be resolved. While the odds are that the ultimate answer to that question seems likely to be no, if it somehow turns out that the Courts allow the suit to go forward it would only be after that preliminary legal question would be resolved and the issue of the delay in the employer mandate would be over by then and there would be no case or controversy for the Court to deal with. At that point, as I’ve said before, we’re likely to be at the point where President Obama is, at most, months away from leaving office in any case. So, proceeding forward solely on a lawsuit on these grounds seems like a waste of time and resources even if the House decides to keep the legal work in House.

As the linked article notes, though, things could change from the perspective of the Republicans in the House if the President takes Executive action of some kind on immigration as many still expect him to do after the elections. At that point, the House, and the Senate if the GOP does end up in Republican hands, could decide to change or expand the focus of the lawsuit to include challenges to those actions whatever they might be. That would require passage of a brand new resolution, of course, and the Senate would have to pass its own resolution if Senate Republican Leadership decided that it wanted to join in on the lawsuit. Additionally, such a lawsuit would face the same problems regarding standing, the Political Question Doctrine, and justicability that the current proposed lawsuit does. As with that proposed lawsuit, the hypothetical new one would likely take at least a year making it through the District Court and Circuit Court of Appeals and, potentially, Supreme Court before those preliminary questions are resolved. While a lawsuit based on the immigration issue would not face the same mootness issue in the future that one based on PPACA delays would, it would face other problems on the merits that would make it seem likely that it would succeed. For example, the laws Congress has passed give the Executive Branch significant discretion in enforcing immigration laws, especially when it comes to the question of how to handle deportation proceedings. If, as many expect, the President’s actions end up resembling an expanded form of the Deferred Action For Childhood Arrivals (DACA) program announced in 2012, then it’s hard for me to see a Court ruling that the actions are impermissible. Additionally, the GOP would be taking a significant political risk by challenging Obama on this issue. While it would be popular with the party base, it would further alienate Latino and young voters, and that could be a problem for Republicans heading into 2016.

In the end, of course, the lawsuit, either the one now contemplated or some future suit based on immigration, isn’t really about legal arguments. It’s about the political struggle between the President and Congress and about the Republican Parry’s efforts to placate a base that has been demanding to see Republican Congressional Leadership “get tough” with President Obama. In other words, it falls directly into the category of cases covered by the Political Question Doctrine that leads Federal Courts to generally avoid getting involved. To some extent, the GOP leaders in the House and the Senate achieve most of their political goals merely by threatening the lawsuit, so perhaps they will ultimately decide not to file it, though. Even if they do go ahead, though, the fact will remain that their goals are purely political and that their legal grounds are, at best, incredibly weak. In other words, any lawsuit that Congress files against the President may not be frivolous to be considered sanctionable under the rules that govern Civil Procedure in the Federal Courts, but it would be likely to come pretty darn close.

FILED UNDER: Barack Obama, Campaign 2014, Campaign 2016, Congress, Law and the Courts, Politicians, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held 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 contributed a staggering 16,483 posts before his retirement in January 2020. He passed for too young in July 2021.

Comments

  1. C. Clavin says:

    We’ve had to endure years of these people yammering on about Fast and Furious and the IRS and Benghazi and Obamacare and the CDC and on and on and on and on and on….and they can’t figure out anything to sue the President for?
    What a bunch on ninnies!!!!!

  2. Mr. Prosser says:

    The lawsuit was a stunt just like the votes to repeal the ACA. There will be no lawsuit after the election or in the next session, especially if the Republicans take the Senate. McConnell, if he returns, will be way too busy with other matters and protecting his back from the likes of Cruz.

  3. Steve V says:

    Ha, they probably just got a look at one of Quinn’s bills.

  4. Facebones says:

    This was always a stunt. It was meant to show Tea Partiers that they were doing something about that darned Obamacare, so please don’t primary us. It largely worked, and now the lawsuit will quietly fade away.

  5. stonetools says:

    Oh well, I guess the Congressional Republicans will just have to go ahead and impeach the President. Since they’ll soon have a Senate majority, the way is clear for them to save the country by impeaching the usurper.
    Man I bet the Republicans winning the Senate is going to tear the roof off the crazy…

  6. Dave Francis says:

    WILL YOUR VALUABLE VOTE DETERMINE STAYING IN THE CLUTCHES OF A REPRESSIVE GOVERNMENT OR THE BEGINNING OF A NEW DAY?

    Conservatives have made Obama’s life a living hell and have prevented him from fully advancing his radical Socialist-Collective agenda. But now this would-be imperial dictator is moving swiftly, burning an open-society to the ground, with the use of Liberal Progressive correctness. Think: how badly do you want to continue to destroy Obama’s plans for illegal alien amnesty, given free 6-8 million legal ID’s that to people who broke our laws. Even worse this administration has secretly released 35 thousand of criminal aliens back into the overall population, to further kill, maim and wreak havoc on the streets. Instinct tells me that thousands of illegal aliens who have committed heinous crimes are kept in a low profile by the leftist’s media. Just last week a twice deported illegal alien murdered two sheriff deputies.

    To stop his destruction of our Constitution, end his gun grab or stop his relentless abuses of office and never-ending executive orders that bypass Congress, we must vote against his party? Any amnesty will create economic hardship further for every American regardless of color. Black African, Hispanics will certainly get the brunt of newly legitimized people who employers will hire, disregarding birthright citizens and green card holders for cheap labor? It will be a miserable time even for young people hungry for a job—any job. Discount labor will only lower wages, and cause farther disintegration of a job market that is already under stress. The ONLY winners are businesses where profit is the bottom line.

    President Obama’s philosophy of OPEN BORDERS will cause a major upheaval in our immigration laws. Read everything you need to know about illegal immigration at NUMBERSUSA.

    Think about what this Liberal Progressive government has adversely accomplished? Huge tax and spend. 7 Trillion dollars since Obama has been in office. 40 Million American in part time or seeking a job–any job. The Advancement of the Politically Correct Police force, denying Americans the freedom of Speech; little or no enforcement at the borders, with the welcome mat from this administration; scandals and smear tactics against the Tea Party and GOP; No accountability for criminal acts by federal officials; and the list goes on.

    The administrations inception was the gun running scandal, placing weapons in the hands of drug cartels in Mexico. Certain radical Democrats have abused the political system, which the founding fathers worried about. Obama has circumvented Immigration laws, and used a gray border line to import unknown numbers of foreign national costing the taxpayer hundreds of billions of dollars.

    Stand up for the principles on which our nation was founded — free enterprise, individual liberty, the right to private property, religious freedom, limited government, and a strong national defense.

    BECAUSE OF THE SERIOUSNESS OF THE MIDTERM ELECTIONS, AMERICANS MUST BE ON THEIR GUARD FOR NON-CITIZENS ILLEGALLY VOTING? The Left have no sense of honor, to stop illegal aliens from voting or people voting in two/three different precincts or other counties and even violating the law with absentee ballots. A study by Cooperative Congressional Election Study (CCES) shows what many Americans are aware of Obama and the Executive know—illegal aliens have been voting. Yes, they recognize it is illegal—but being in this country without documents is also illegal. More than 14 percent of non-citizens in both the 2008 and 2010 samples indicated that they were registered to vote.

    Mass numbers of disease-infested illegal aliens are asphyxiating our southern borders with Obama executive orders spurring them on. If you have been with moderate Conservatives as a part of the verbal revolution from the start then, you know that this has been a long hard fight—until the midterms.

    US Border Patrol agents have been telling us that the illegal aliens are crossing the border claiming, “Obama will take care of us” as if it has been carefully orchestrated—taught before they even cross the border into the U.S.

    The federal immigration officers union that represents thousands of federal agents is raising the alarm by reporting that the contracted vendors to create 34 million blank work ID’s and green cards, speculating that the Obama administration may be preparing executive directives internally to for illegal aliens. It makes you suspicious how many illegal aliens are really in the United States? Remember numbers are mainly based on the Census enumeration, so you cannot deny how many people shunned the census agent who came to the door, collecting data.

    President Obama is the most anti-American president in the history of our country. He hides behind a cloak of lies, spewing propaganda and utter disdain for our Rule of Law. He’s allowed Muslim Brotherhood to infiltrate the White House and has funded the murderers and haters of America with our taxpayer dollars. Are you ready to say “NO MORE? Americans have endured enough. This will better be understood when the majority of us are forced into Obamacare, jobs are lost, hours cut. Defending this mandatory law you are either a ‘deadbeat’ sucking up free stuff, or a government worker who is shielded by special exemptions?

    You know as well as I do that is restrained Conservatism, with the outreach of Tea Party leaders. All along Dr. Ben Carson, Ted Cruz, Lt. Colonel Allen West, Rand Paul is the leading Tea Party leaders who don’t see Americans dependent on a bloated government from cradle to grave. We are not en mass a ‘Give me, Give Me nation? The something for—NOTHING people will be first in line to vote. America needs jobs—not handouts. Unless you have credence in this form of repressive society, the secrecy from the top, that is not dissimilar from the Russian state. The Tea Party has been the only one fighting for our Constitution, for ‘We’ the People and for everything our Founding Fathers stood for?

    Even our critical energy supplies have been under attack, by harsh regulations by the EPA on coal, natural gas and oil. Shale oil is making America rich, and able to assist friendly governments. But if the Liberal fringe gets its way, we will become dependent on windmills, etc. Obamas intentions are also to allow the United Nations, to sign over our Oceans and federal land, and there is even talk of the UN taxing our Internet.

    All we need are six seats to take back the Senate. Give the Republican Party to right the wrongs, from Obama care, sealing the border and stop government agencies spying on Americans. We win them and we can rollback Obama’ agenda. Return America to the PEOPLE. It is critical we get out the word that we need our candidates to win.

  7. Dave Francis says:

    As an Independent I personally think that the majority of both parties stink, but I do trust the splintering millions who belong to the TEA PARTY. I also do believe that Voter Fraud is not a myth and the biggest violators are the Liberal-Democrats.

    Every prudent American should carefully scrutinize the thousands of electronic voting machines scattered around the country in the election hall. Complaints that were warranted is the fact that if you are voting for a Republican it transfers your vote to a Democrat, with excuses that it was an error when it was calibrated. But this has been happening more and more so stand and watch that your precious vote is correct. It happened in Maryland and Illinois, so be vigilant and make sure your vote goes to your selected politician or approved issue.

    “Vote flipping” is the phrase given when a vote flips from one candidate or party selected to the other. In these cases, the Republican option flipped to the Democratic one. The cause of the issue of Republican votes turning blue is said to be a “calibration issue,” but Illinois is not the only state experiencing these early voting issues. According to WBALTV, complaints of “vote flipping” are plaguing several counties in Maryland.

    The Daily Caller E-media publicized an avenue to expose Voter Fraud, by contacting ‘True the Vote’, one of the conservative groups that was singled out by the IRS in the tax-exempt targeting scandal prior to the Presidential election that is launching a new app to make voter fraud easier to report.
    The app, called VoteStand, allows users a quickly and easily report suspicious activity. The app will be released for iOS and Android on Nov. 1.
    According to the app’s website, the VoteStand is “America’s first. Online election fraud reporting app. VoteStand provides you the online tools and support you need to quickly report suspected election illegalities as they happen.”
    The features of VoteStand, according to its website, are:
    Secure
    VoteStand uses a high level encryption, inside the app allowing information to get to the right people to make reporting voter fraud easily. Count on us to provide you with the best reporting tool around.
    Report
    The app uses your geo-location and the user filled report in order to provide enough evidence to procure legal action against the person/persons committing the fraud.
    Investigate
    After an easy sign up, the app is ready to use and report all visual evidence of voter fraud. The processes are as easy as taking a picture and filling out some identifying information about the incident. That’s it!
    Voter Fraud is more prevalent than most American think. Our election laws have been compromised as in a study by Cooperative Congressional Election Study (CCES) shows what many Americans are aware of Obama and the Executive know—illegal aliens have been voting. Yes, they recognize it is illegal—but being in this country without documents is also illegal. More than 14 percent of non-citizens in both the 2008 and 2010 samples indicated that they were registered to vote.
    The Declaration of Perjury is lame, and instead should have some teeth in it? Perhaps on a conviction for a non-citizen, should be sentenced to Sheriff Joe Arpaio’s Tent City in Maricopa County, Arizona with the feds paying the bill. Even the new Colorado absentee ballot was compromised almost immediately. Democrats are the biggest culprits and look the other way on any irregularities. Without any fear of contradiction California having the largest populations of illegal aliens and a crazy Governor Jerry Brown who welcomes criminal nationals in his Sanctuary state has no requirement of a picture ID to vote. Therefore, how can a Californian truly knows that their vote count when the whole system is has been undermined by people who have no right to be in the country.

  8. gVOR08 says:

    @Dave Francis: @Dave Francis: Wow. I sort of expected a smiley face at the end of that to signal snark over. Without it, I guess I’ll be grateful it wasn’t all caps and you did use paragraphs.

  9. HarvardLaw92 says:

    OK, who invited the teatard?

  10. Grewgills says:

    @Dave Francis:
    As an independent person I like to post cut and paste screeds on random web sites. Posting someone else’s thoughts makes me extry independent.

  11. humanoid.panda says:
  12. Slugger says:

    Luckily we have the ever vigilant Mr. Boehner to protect us from the menaces Mr. Davis catalogues. I am sure that the ACA will be repealed any day now, the Benghazi investigation will disclose all sorts of wrongdoing, and the suit stop Obama’s unchecked war making.
    Actually, I think that presidential war making has needed checking since about 1965, but as long as Mr. Boehner is able to get applause for saying that George Bush would have punched Mr. Putin in the nose over Crimea we will get what we got now.

  13. JohnMcC says:

    My reading for the past few years has been about the Founders and their times. Meacham’s Jefferson, McCullough’s Adams, Thomas Paine, Edmund Burke, etc.

    My strong opinion is that every one of those gentlemen would have been amazed at the idea of a Branch of the Congress suing the President in Federal Court. They imagined all kinds of malfunctions and tried to put barriers in the way of these problems of democracy. Nullification. Secession. All kinds of things. Never a law suit.

    Maybe they gave their counterparts 200 years in the future credit for too much intelligence?

  14. pylon says:

    I wait with great anticipation for the quality of a suit brought by in-house congressional lawyers instead out outside litigation specialists.

  15. Boehner:

    Turnabout is fair play.

    After all, Congress usurped and exercised Presidential power (specifically Article II, Section 2, Clause 1) when it retroactively amended the false marking section of the patent statute (35 U.S.C. §292) to thereby grant a pardon to your buddies in the Fortune 500 who were illegally marking their products with expired patents.

    See Stauffer v. Brooks Brothers Group, Inc., (Federal Circuit #2013-1180) Doc.#36, Doc.#60, and Doc.#90).

    Where was your respect for the separation-of-powers doctrine then?!?!