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The Boehner Lawsuit Against Obama Is Beginning to Take Shape
National Journal ^ | 7-8-14 | Billy House

Posted on 07/09/2014 4:13:03 AM PDT by afraidfortherepublic

A vote on the resolution to authorize the legal action is set for the week before August break.

Starting next week, House Republicans will launch a highly visible—and likely tumultuous—three-week process of bringing to the floor legislation to authorize their promised lawsuit against President Obama over his use of executive actions.

"In theory, you could report out a resolution tomorrow and vote on it," said a House GOP aide on Tuesday. "But that is not the approach [the leaders] want to take."

Rather, the aim is to display—if not actually engage in—a more deliberative process, even if amid controversy. This drawn-out script builds toward a potentially dramatic floor vote held just days, or even hours, before the House adjourns on July 31 for its August-long summer break.

It will all start playing out when a panel of experts is called to testify next week on issues surrounding such litigation and to answer members' questions during a hearing of the House Rules Committee.

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The resolution to authorize the legal action will then be formally written, or marked up, by the committee during a hearing the following week. The floor vote on the legislation will follow the week after that, in the days before the break.

Then, a bipartisan House leadership committee controlled by Republicans—the Bipartisan Legal Advisory Group, or BLAG—will finalize the language and legal direction of the lawsuit, deciding which arguments will have the most chances of success in a court.

Against this buildup toward actually filing the lawsuit, there is some Republican concern over the potential embarrassment of a quick dismissal of such litigation in the courts. In fact, legal experts say there looms a substantial roadblock in the form of a presumption against congressional standing required to maintain such a case in federal court.

Speaker John Boehner has so far provided few public details of what exactly will be in the lawsuit, or how that obstacle of its legal merits might be dealt with.

In an op-ed he wrote appearing this weekend on CNN's website, Boehner asserted that "the president has not faithfully executed the laws when it comes to a range of issues, including his health care law, energy regulations, foreign policy, and education." Boehner did not mention immigration issues specifically.

But Boehner added, "The president has circumvented the American people and their elected representatives through executive action, changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold—at times even boasting about his willingness to do it, as if daring the American people to stop him."

But while Boehner was vague on legal specifics, two lawyers whom Republicans consulted on the issue have written a column entitled "Can Obama's Legal End-Run Around Congress Be Stopped?" in which they address some of the issues and arguments for such legal action.

David Rivkin Jr. and Elizabeth Price Foley write that Obama has worked around Congress with "breathtaking audacity."

Not only do they say he has unilaterally amended the Affordable Care Act multiple times—including delaying the employer mandate—they also write that the president has suspended immigration law, refusing to deport some young undocumented immigrants.

And "with the stroke of a magisterial pen," they write, Obama has "gutted huge swaths of federal law that enjoy bipartisan support, including the Clinton-era welfare-reform work requirement, the Bush-era No Child Left Behind law, and the classification of marijuana as an illegal controlled substance."

The two lawyers note in their column that Sen. Ron Johnson, R-Wis., has already filed a lawsuit challenging the president's decision to exempt Congress from the health law exchanges. And they point out that Rep. Tom Rice, R-S.C., has a resolution called the Stop This Overreaching Presidency that would authorize the House to legally challenge several presidential work-arounds.

"But Congress's ability to reclaim its powers through litigation faces a substantial roadblock in the form of a presumption against congressional 'standing,' " Rivkin and Foley write. A plaintiff has standing in a case when he or she can demonstrate a concrete, particularized injury the court can remedy.

But the Supreme Court previously seemed to shut the door to congressional standing in a 1997 case, Raines v. Byrd, in which six members of Congress challenged the constitutionality of a presidential veto. The Court held that the claimed loss of congressional power by the six lawmakers was "wholly abstract."

At the same time, the two lawyers contend that the issue of standing should not bar enforcement of the separations of powers where "there are no other plaintiffs capable of enforcing this critical constitutional principle."

"This is because they are 'benevolent' suspensions, in which the president exempts certain classes of people from the operation of law. No one person was sufficiently harmed to create standing to sue, for instance, when Obama instructed the Department of Homeland Security to stop deporting young illegal immigrants," they write.

In addition, they write that in Raines, it was an ad hoc group of members of Congress that filed the suit. But, in a reference to BLAG, the lawyers argue that when House or Senate rules "have a mechanism for designating a bipartisan, official body with authority to file lawsuits on their chamber's behalf, the case for standing is more compelling."

"Then, the lawsuit is not an isolated political dispute, but a representation by one of the two chambers of the legislative branch that the institution believes its rights have been violated," they assert. "These types of serious, broad-based institutional lawsuits should be in a different category" than the Raines case, they assert.

"If congressional standing is denied in such cases, there will be no other way to check such presidential usurpation short of impeachment," the two write.

Obama has responded to the threat of the potential lawsuit by calling it a "stunt."

The president also said late last month, "If Congress were to do its job and pass the legislation I've directed them to pass, I wouldn't be forced to take matters into my own hands."


TOPICS: Business/Economy; Constitution/Conservatism; Crime/Corruption; Government
KEYWORDS: boehner; dhs; lawsuit; obama

1 posted on 07/09/2014 4:13:03 AM PDT by afraidfortherepublic
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To: afraidfortherepublic
Headline should be:

John Boehner Does Something!

Of course, what Johnny the Drunk has really done is give himself cover through election season. The Republicans are not to be taken seriously until this guy is replaced as speaker. It is too much to ask that he be voted out in his district, which is the safest of safe seats, populated by blue-haired senile clubwomen who love their debonair Johnny and whose care-givers fill in their absentee ballots.

2 posted on 07/09/2014 4:20:43 AM PDT by Kenny Bunk (The GOP is dying. What do we do now?)
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To: afraidfortherepublic

Free Republic is famous for being critical of the congress and especially the Speaker, for doing nothing.

If the suit is thrown out the effort will at least disprove the “do nothing” notion. Being thrown out will certainly indicate that the congress has little or no remedy against despotic President.

Being thrown out will set the stage for impeachment proceedings in the new House and trial in the new Senate.


3 posted on 07/09/2014 4:22:17 AM PDT by bert ((K.E. N.P. N.C. +12 ..... Obama is public enemy #1)
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To: bert; All
@ which time, it'll be stopped cold.
this is soap opera for the masses, nothing shall happen.

4 posted on 07/09/2014 4:26:12 AM PDT by skinkinthegrass (The end move in politics is always to pick up a weapon...0'Jihadist/"Rustler" Reid? d8-)
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To: Kenny Bunk
.

Headline should be:

John Boehner Does Something!

Of course, what Johnny the Drunk has really done is give himself cover through election season. The Republicans are not to be taken seriously until this guy is replaced as speaker.



Headline should REALLY be:

John Boehner Tries Political Head-Fake while Screwing his Constitution Duties as Speaker of the House

Instead of launching Impeachment against the treasonous bastard Obama ...

John Boehner joins the Ladies Christmas Tea Glee Club and "wankers-about" with a RIDICULUOUS lawsuit.


.

5 posted on 07/09/2014 4:26:40 AM PDT by Patton@Bastogne (.)
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To: afraidfortherepublic

Head Fake


6 posted on 07/09/2014 4:26:44 AM PDT by cp124 (Government is value subtracted.)
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To: afraidfortherepublic

How could one intelligently vote on such a resolution without first seeing a draft the proposed complaint?


7 posted on 07/09/2014 4:29:58 AM PDT by circlecity
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To: bert; All
maybe "impeachment" for the GOP/e leadership class, would be
more appropriate, good riddance for sitting on their hands.

8 posted on 07/09/2014 4:31:17 AM PDT by skinkinthegrass (The end move in politics is always to pick up a weapon...0'Jihadist/"Rustler" Reid? d8-)
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To: All

Forget the law suit.

A better idea is to change the locks on the WH doors-—Boobamba will never figure that one out.

He’ll just conclude the lovely Michelle did it.

ROTFLOL.


9 posted on 07/09/2014 4:32:13 AM PDT by Liz (Another Clinton administration? Are you nuts?)
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To: afraidfortherepublic

The constitutional remedy is not to file a lawsuit, but to file articles of impeachment.

The lawsuit is a joke, just like Boehner.


10 posted on 07/09/2014 4:33:34 AM PDT by P-Marlowe (There can be no Victory without a fight and no battle without wounds)
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To: P-Marlowe

Impeachment may sound good, but it’s meaningless. Even if the House votes to impeach, the Senate will not vote to remove.

The lawsuit is an excellent idea and attacks the problem head on.


11 posted on 07/09/2014 4:37:13 AM PDT by livius
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To: livius

It the “law suit” goes like everything else gubmint does, it should be about ready in March of 2020, by then, like Hitlary said, “What Difference Does It Make”?


12 posted on 07/09/2014 4:41:53 AM PDT by DaveA37
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To: afraidfortherepublic

Kabuki theatre by the oompah-loompah.


13 posted on 07/09/2014 4:43:07 AM PDT by VRWC For Truth (Roberts has perverted the Constitution)
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To: bert

Then Boehner will cry.

He has done so little for so long that nobody cares what he says he’s doing now.

By letting opportunity after opportunity pass, while feathering their own nests, the GOP has brought us to the present state. Had they done their jobs when they controlled the government, we would not have Obama or the debt or the financial collapse.

Screw them all!


14 posted on 07/09/2014 4:45:24 AM PDT by GilesB
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To: livius; flaglady47; mickie; pax_et_bonum; Maine Mariner; seekthetruth; Bushbacker1; Bob Ireland; ...
You're correct. Impeachment is meaningless and futile due to the Dem-controlled Senate. The votes are not there.

In addition, an impeachment process will just unite, motivate and turn out the Obama/Dem base as the November election looms.

A daily impeachment publicity bombardment by the media would virtually eliminate focus on vital campaign issues, i.e., economy, jobs, amnesty, obamacare, scandals, Dem administration lawlessness, etc.

The Boehner lawsuit is enough at the moment. Draw up articles of impeachment against the bastard after the election to keep him tied down as much in possible in the dangerous two years left in his term. And if we hold the House and take the Senate, the impeachment might be successful.

Now is not the time.

Leni

15 posted on 07/09/2014 4:53:21 AM PDT by MinuteGal
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To: Liz
A better idea is to change the locks on the WH doors-—Boobamba will never figure that one out.


16 posted on 07/09/2014 5:08:59 AM PDT by Servant of the Cross (the Truth will set you free)
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To: afraidfortherepublic
The president also said late last month, "If Congress were to do its job and pass the legislation I've directed them to pass, I wouldn't be forced to take matters into my own hands."

This says it all, right here.
17 posted on 07/09/2014 5:13:23 AM PDT by Old Yeller (Anything is possible, if you don't know what you're talking about.)
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To: MinuteGal
A daily impeachment publicity bombardment by the media would virtually eliminate focus on vital campaign issues, i.e., economy, jobs, amnesty, obamacare, scandals, Dem administration lawlessness, etc.

I think we're already seeing it, actually. I don't watch morning TV shows but I gather from posts here that they're all babbling about the evil Republicans and their impeachment talk and, of course, bringing up memories of the impeached Dem hero, Bill Clinton. And we all recall exactly what impeaching Bill Clinton achieved: nothing.

The fact that they are avoiding talking about the lawsuit implies to me that they might actually be worried about it and also, possibly, that it might even be at least tacitly supported by some Dems who are miffed by the fact that Obama has just taken over the functions of the legislature and they are simply being ignored.

18 posted on 07/09/2014 5:30:33 AM PDT by livius
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To: livius
The lawsuit is an excellent idea and attacks the problem head on.

This is just as hollow as an impeachment effort would ultimately be, but it allows the House of Representatives to appear to be doing *something*, while avoiding the strife that an impeachment vote would bring. It's all meaningless.

19 posted on 07/09/2014 5:36:08 AM PDT by Charles Martel (Endeavor to persevere...)
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To: livius

Strongly disagree as the lawsuit is merely for show. Lawsuits are an invitation for delays, most likely on a procedural basis. In other words, Obama would probably continue his second term without meaningful resistance. One of my major problems with Republicans is they are whiners. Rather than do something about a situation, they’d rather sit back and complain looking for sympathy. Citizens deserve leadership, not more of Obama!


20 posted on 07/09/2014 5:39:02 AM PDT by Boomer One
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To: MinuteGal

I seriously doubt that even after the election there will be enough Senate votes to remove Obama from office. The Constitution requires a 2/3 majority of the Senate to convict on articles of impeachment and remove the President. While a GOP majority in the Senate is likely, a 2/3 majority is certainly not going to happen.


21 posted on 07/09/2014 5:47:20 AM PDT by stremba
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To: livius

It’s not a constitutional option.

If Boehner think the president has acted in violation of the constitution, then his obligation is to bring up articles of impeachment.

A lawsuit is a stupid idea. It’s just Kabuki theatre. It’s designed to just mollify the masses. You can’t get a lawsuit through the court system before Obama completes his fourth term. It has to go to trial and then through the appeals process. It could take 10 years. And what will the court order him to do? Will Obama obey a court order? Has he complied with any subpoenas lately?

Fool’s errand.

Just impeach the Bastard. That what the Constitution calls for. That is what is needed now.


22 posted on 07/09/2014 5:55:55 AM PDT by P-Marlowe (There can be no Victory without a fight and no battle without wounds)
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To: Charles Martel; livius
..... allows the House of Representatives to appear to be doing *something*, while avoiding the strife that an impeachment vote would bring....

Yup. Pedestrian Parliamentary Move. Boehner's staff has been busy. This is a true crisis. Why the GOP might take the House and Senate, giving them vast governmental responsibilities!
Bad. That will take time away from the GOPe's true work of protecting their "clients" from government agencies. Might even force them to possibly, potentially, maybe perhaps looking at or ... god forbid ... confronting one, could be even two, of the structural constitutional issues that are strangling the Republic.

A Republican majority makes more work for the Democrats, too. They have to figure out better ways to blackmail the GOP into doing what they want. But, having you-know-who in the WH, means they still control the swag.

Now, if only we could get more of "our" people off the couch and to the polls....

23 posted on 07/09/2014 5:56:47 AM PDT by Kenny Bunk (The GOP is dying. What do we do now?)
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To: Kenny Bunk

There ya go. Johnny the Drunk will do nothing but posture on this. He is as worthless as tits on a boar hog.


24 posted on 07/09/2014 6:41:41 AM PDT by CodeToad (Arm Up! They Are!)
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To: P-Marlowe
A lawsuit is a stupid idea. It’s just Kabuki theatre. It’s designed to just mollify the masses. You can’t get a lawsuit through the court system before Obama completes his fourth term. It has to go to trial and then through the appeals process. It could take 10 years. And what will the court order him to do? Will Obama obey a court order? Has he complied with any subpoenas lately?

I have no doubt that if a Republican Administration acted as lawlessly as has Obama on a range of issues, leftist advocacy groups would have raced to court, activist judges would accept the suits and issue injunctions at warp speed, and the hapless Republican Administration, deferring to legal process, would find itself stalled for years while the challenges worked their way through the courts.

So what we have here is, once again, one of those maddening asymmetries that is poisoning our politics. A Democratic Administration acts lawlessly, judges bend over backwards to invent reasons to lock plaintiffs out of court, and the Administration systematically slow walks everything that does make it into court.

25 posted on 07/09/2014 6:45:01 AM PDT by sphinx
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To: afraidfortherepublic

“... the lawsuit is not an isolated political dispute, but a representation by one of the two chambers of the legislative branch that the institution believes its rights have been violated.”

The Congress does not have Constitutional rights. The Congress has powers, duties, authorities and privileges delegated to it by the people and the States through the U.S. Constitution.

The people have a right to seek a redress of grievances in the District Court pursuant to the First Amendment. The U.S. Congress does not have First Amendment rights. The U.S. Congress has the Speech and Debate Clause, (Article I, Section 6, Clause 1).


26 posted on 07/09/2014 7:08:01 AM PDT by SvenMagnussen (1983 ... the year Obama became a naturalized U.S. citizen.)
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