Skip to comments.The Boehner Lawsuit Against Obama Is Beginning to Take Shape
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 visibleand likely tumultuousthree-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 displayif not actually engage ina 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 Republicansthe Bipartisan Legal Advisory Group, or BLAGwill 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 upholdat 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 timesincluding delaying the employer mandatethey 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."
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.
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.
How could one intelligently vote on such a resolution without first seeing a draft the proposed complaint?
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.
The constitutional remedy is not to file a lawsuit, but to file articles of impeachment.
The lawsuit is a joke, just like Boehner.
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.
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”?
Kabuki theatre by the oompah-loompah.
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!
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.
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.
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.
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!