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Why the House of Representatives just voted to sue President Obama (Great Q & A)
| Andrew Prokop
Posted on 07/31/2014 10:32:00 AM PDT by Responsibility2nd
On Wednesday evening, the US House of Representatives voted to sue President Obama over the delay of Obamacare's employer mandate. The resolution, which you can read here, passed on a vote of 225 to 201, with every Democrat voting against it. 5 Republicans also voted no, including some of the chamber's most conservative members, Reps. Paul Broun (R-GA) and Steve Stockman (R-TX) — likely because the measure doesn't go far enough. Here's our explainer as to whether there's any precedent for this, whether the suit has a chance, and how it will proceed.
Has the House of Representatives ever sued the president before?
Individual members of Congress, and groups of members, have filed many lawsuits against the president and the executive branch. But neither the House or Senate has ever institutionally sued the president for failing to enforce the law.
"The closest was that the Senate Watergate Committee sued President Nixon to get the Watergate tapes," says Professor Charles Tiefer of University of Baltimore law school, an expert on separation of powers. William & Mary law professor Neal Devins concurs. "There have been lawsuits between Congressional committees and high ranking executive officials over executive privilege claims," Devins says, "but I am unaware of anything precisely like this possible case."
How have past suits from members of Congress fared?
Generally, they haven't done well. The problem is "standing." Courts can only step in to adjudicate specific cases — cases where the plaintiff has experienced some harm caused by the defendant. Only then does that particular plaintiff have "standing" to sue in federal court — and only then does the court adjudicate the merits of the case. In contrast, if the court finds the plaintiff does not have standing, they dismiss the case without ruling on it.
All of these suits were dismissed due to lack of standing
Boehner's problem is that the vast majority of lawsuits brought by members of Congress against the president on policy issues have been dismissed for lack of standing. As Lyle Denniston of the National Constitution Center wrote, "Time after time, when members of Congress have sued in the courts, because the Executive Branch did something that they believe frustrated the will of Congress, they have been met at the door of the courthouse with a polite refusal to let them in." The courts also tend to be skeptical of these suits because Congress has constitutional means by which it can check the president's power on its own — by passing a new law, using the power of the purse to cut off funding, or through impeachment.
In recent decades, several members of Congress sued President Clinton over the short-lived line-item veto act, other members sued Clinton for an executive order establishing environmental protections for certain rivers, and in 2011 Rep. Dennis Kucinich (D) sued President Obama for launching the military operation in Libya. All of these suits were dismissed due to lack of standing. In the line-item veto case, Raines v. Byrd, Chief Justice William Rehnquist wrote for a 7-2 Supreme Court majority: "Our standing inquiry has always been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional."
So why would this time be any different?
It might not be. But lawyer David Rivkin and Florida International University law professor Elizabeth Price Foley have crafted some new and untested arguments — since adopted by Boehner in a memo to House Republicans — to justify why the House might have standing to sue the president for failing to execute the laws, in the following narrow and specific circumstances:
- If it's impossible for a private plaintiff to demonstrate harm. If the president is refusing to enforce a law in a way that doesn't cause harm to anyone — but still looks illegal — then, Rivkin and Foley argue, the legislature should be permitted to sue, or else no one would have standing to hold the president to account. For instance, delaying certain Obamacare provisions, changing welfare work requirements, or refusing to deport certain unauthorized immigrants could fall into this category.
- If there's formal authorization for the suit. In the Raines v. Byrd ruling, Rehnquist wrote that "we attach some importance to the fact that" the members of Congress suing "have not been authorized to represent their respective houses of Congress in this action." Therefore, Rivkin and Foley say, Boehner should seek such authorization from the House.
- If there's no feasible political remedy. Essentially, Rivkin and Foley argue that Obama's actions are very bad, but not bad enough to merit impeachment. Therefore, they say, the court should step in to ensure the laws are enforced properly.
Some staunch conservatives have been downright scornful of Boehner's effort
What do people think of these arguments?
Some conservative commentators are impressed. The Wall Street Journal editorial page supports the effort, writing
, "The legal establishment will dismiss Messrs. Johnson and Rivkin as cranks with no hope of success, but it has been wrong before." George Will , calling on Boehner to fight back against Obama's "egregious executive aggressions." And Rivkin played a key role in developing novel arguments that advanced the lawsuit against Obamacare far further than most legal observers expected.
Yet most legal analysts seem much more skeptical. "I see this every day now, being covered as if it's real, as if it's somehow not a joke," Yale law professor Akhil Reed Amar says. "But can they name a single successful lawsuit in American history that is of close precedent to what they are proposing?" If not, he says, "At a certain point, I get to call Birther-ism. I get to call bullshit." And Harvard law professor Jack Goldsmith wrote, "The lawsuit will almost certainly fail, and should fail, for lack of congressional standing."
Erick Erickson of RedState called the lawsuit "nothing more than political theater"
Some staunch conservatives have been downright scornful of Boehner's effort. Former Bush Department of Justice prosecutor Andrew McCarthy, who just wrote a book making the case for impeaching Obama, wrote that Boehner's arguments — and, by extension, Rivkin and Foley's — were "either untrue or abject nonsense." He added that "judges are not there to resolve power disputes between the political branches." He pointed out that Boehner utterly fails to establish that political remedies aren't available to Congress, since they can simply cut off funding or launch impeachment proceedings.
Foley has argued that impeachment isn't plausible because "the president's own party controls one of the chambers of Congress," but that's irrelevant — political parties are never mentioned in the Constitution, and the courts don't exist to solve Congressional gridlock. Meanwhile, Erick Erickson of RedState called the lawsuit "nothing more than political theater," and said that "if the Republican leaders in the House are too chicken to use their constitutional powers to rein in the President, they should just call it a day and go home."
What is the lawsuit specifically about?
Initially, Boehner's memo to House Republicans and his CNN op-ed were vague on the subject, leading commentators to remark that it's rather odd to announce a lawsuit before you know what you're suing over.
Weeks ago, Boehner announced that the lawsuit would focus on the delay of Obamacare's employer mandate. "In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it. That's not the way our system of government was designed to work," Boehner said in a press release. You can read his draft resolution here.
Sarah Kliff has more background about the employer mandate here and here. Boehner's lawsuit demands that the unpopular mandate be enforced, while Obama argues that he should have the flexibility to delay it. In an interview before Boehner specified what he was suing over, Yale Law professor Akhil Reed Amar said, "I'm doubtful that merely because you've waived or extended some deadline that you've done something illegal." The Constitution calls on the president to make sure that the laws are "faithfully executed," he pointed out. "Who do you trust to make Obamacare work? Obama, or the guy who's voted against it 3,000 times who doesn't want it to work?"
How would the lawsuit proceed?
Since the suit would be filed on behalf of the US House of Representatives, Boehner will convene a group of five House leaders called the Bipartisan Legal Advisory Group. The BLAG instructs the House of Representatives General Counsel's office on how to handle the lawsuit. Its members are Boehner himself, new majority leader Kevin McCarthy (R-CA), Majority Whip Steve Scalise (R-LA), Minority Leader Nancy Pelosi (D-CA), and Minority Whip Steny Hoyer (D-MD). That's three Republicans and two Democrats, so though the BLAG theoretically represents the whole House, GOP leadership will have full control over it.
The lawsuit will be filed in federal district court, and could then theoretically be appealed to the DC Circuit, and eventually to the Supreme Court. If the courts find the House does have standing to sue, and then rules in their favor, Obama would likely be ordered to implement the employer mandate. Theoretically, then, it would be up to him to comply — but if he refused to do so, he'd certainly fuel cries for his impeachment.
How has the Obama Administration responded?
At first, they didn't seemed to take it particularly seriously. Obama called it "a stunt" and said "I'm not going to apologize for trying to do something while they're doing nothing." He also said, in a Rose Garden speech, "So sue me." The new White House counsel, Neil Eggleston, told a reporter recently, "As I used to tell clients in private practice, anybody can sue anybody over anything." More recently, White House senior adviser Dan Pfeiffer told reporters that the lawsuit "has opened the door to Republicans possibly considering impeachment at some point in the future."
What are the broader implications?
The specifics of Boehner's suit focus only on a very narrow issue: whether or not the courts will order Obama to implement the employer mandate. So let's focus on the broader question of what will happen if the courts decide that the House does in fact have standing to sue the president. Overall, the power of the presidency would be weakened, and the power of Congress and especially the courts would be strengthened.
In recent decades, conservatives have tended to be suspicious of loosening standing requirements, and have argued instead for restraining the judicial role. Justice Antonin Scalia wrote in a Supreme Court dissent last year that the consequences of loosening standing requirements could be vast. Scalia darkly imagined a system "in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress's liking." He added, "Placing the Constitution's entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor."
But overall, those who think the president has grown too powerful and unchecked in recent years would probably be happy if the courts placed a new check on executive power. A favorable ruling for Boehner would likely make life somewhat more difficult for any president in power. For instance, one could imagine a Democratic Congress suing a Republican president for improperly implementing Obamacare, or for refusing to enforce environmental laws.
TOPICS: Constitution/Conservatism; Front Page News; Government
(Getty images removed from post)
Here’s a rundown of the 14 lawsuits we found:
• Senate Select Committee on Presidential Campaign Activities vs. Nixon (1974). This was one of the Watergate-era cases involving what evidence President Richard Nixon had to turn over to investigators that heightened the pressure on Nixon to resign.
• Drummond vs. Bunker (1977). William R. Drummond, a citizen of the Panama Canal Zone, sued President Jimmy Carter to stop his administration from negotiating about handing over the then-U.S.-held canal zone to Panama, arguing that only Congress possessed that right. Six members of Congress intervened in the case alongside Drummond, arguing that the executive branch was depriving them of their constitutionally protected vote.
• Goldwater vs. Carter (1979). Several lawmakers, led by Sen. Barry Goldwater, R-Ariz., sued Carter, arguing that the president had bypassed Congress by ending a defense pact with Taiwan.
• Crockett vs. Reagan (1982). Sixteen senators and 13 House members asked a federal court to rule that the dispatching of several dozen U.S. military personnel to El Salvador by President Ronald Reagan contradicted Congress’s war powers and the Foreign Assistance Act.
• Sanchez-Espinoza vs. Reagan (1983). Twelve House members joined with 12 Nicaraguan citizens and two American citizens seeking damages and a declaration that Reagan had violated war powers restrictions by pursuing the overthrow of the Nicaraguan government.
• Conyers vs. Reagan (1984). Eleven House members sued Reagan, arguing that his use of military force in Grenada had usurped Congress’s war powers.
• Lowry vs. Reagan (1987). Ten House members sued Reagan on war powers grounds, this time over the president’s approval of escort operations for reflagged Kuwaiti tankers in the Persian Gulf.
• Dellums vs. Bush (1990). One senator and 53 House members sued President George H.W. Bush to stop him from attacking Iraq without approval from Congress during the run-up to what became the Persian Gulf War.
• Raines vs. Byrd (1997). Six members of Congress who had voted against giving the president the authority to veto individual items in bills -- rather than just entire bills -- sued over the act’s constitutionality.
• Chenoweth vs. Clinton (1999). Four House members sued President Bill Clinton over his creation by executive order of the American Heritage Rivers Initiative, saying it exceeded his authority as president.
• Campbell vs. Clinton (2000). Thirty-one members of Congress sued Clinton on war powers grounds for his decision to send military forces to participate in a NATO-organized campaign of airstrikes in the former Yugoslavia.
• Kucinich vs. Bush (2002). Rep. Dennis Kucinich, D-Ohio, sued President George W. Bush over the administration’s unilateral withdrawal from an anti-ballistic missile treaty, arguing that the executive branch could not do that without Congress’ consent.
• Doe vs. Bush (2003). Twelve House members joined with several dozen servicemembers and their families to sue Bush on war-powers grounds, seeking to stop a United States-led invasion of Iraq.
• Kucinich vs. Obama (2011). Kucinich also sued Bush’s successor, Obama, on war-powers grounds, saying that his intervention in Libya was unconstitutional.
posted on 07/31/2014 10:35:21 AM PDT
(NO LIBS. This Means Liberals and (L)libertarians! Same Thing. NO LIBS!!)
“The specifics of Boehner’s suit focus only on a very narrow issue: whether or not the courts will order Obama to implement the employer mandate....”
I’m no lawyer but that sounds pretty stupid to me. By the time the suit winds through the courts the mandates will have been implemented.
Or are they suing over the exemptions?
posted on 07/31/2014 10:39:10 AM PDT
Barry just cant get NO RSPECT
lets just ARREST the rat and have done with it ALL
posted on 07/31/2014 10:41:08 AM PDT
( "Never, never, never give up". Winston Churchill ...)
So essentially, Congress is seeking a writ of mandamus.
I'm sorry the formatting didn't copy over correctly, but one bullet point stands out:
Erick Erickson of RedState called the lawsuit "nothing more than political theater"
posted on 07/31/2014 10:42:32 AM PDT
(NO LIBS. This Means Liberals and (L)libertarians! Same Thing. NO LIBS!!)
The courts also tend to be skeptical of these suits because Congress has constitutional means by which it can check the president's power on its own by passing a new law, using the power of the purse to cut off funding, or through impeachment.
These courts have it right. I've been saying for months that a stupid lawsuit is a waste of time.
Boner wants to wage a legal battle because he doesn't have the b@lls to wage a political one.
posted on 07/31/2014 10:56:17 AM PDT
by Alberta's Child
("What in the wide, wide world of sports is goin' on here?")
To pretend they are doing something by filing a piece of paper work that will take years to resolve.
posted on 07/31/2014 10:57:01 AM PDT
(I was standing with a rifle, waiting for soviet paratroopers, but communists just ran for office.)
“Why the House of Representatives just voted to sue President Obama (Great Q & A)”
So they can look like they’re opposing Obama without actually opposing him.
posted on 07/31/2014 11:11:04 AM PDT
by Cubs Fan
(Illegal immigration will be America's downfall)
When the courts rule in Obama’s favor, he will see it as the green light to officially take over as dictator. And the house won’t be able to do a damned thing. This is a dumb move by boner.
posted on 07/31/2014 11:14:03 AM PDT
(Liberals were raised by women or wimps. And they're all stupid.)
"But can they name a single successful lawsuit in American history that is of close precedent to what they are proposing?"
And we all know that lawsuits to force gay marriage on the people were laughed out of court due to that precise reason.
posted on 07/31/2014 11:33:27 AM PDT
("Happy Pony is on - and I'm NOT missing Happy Pony")
To: Alberta's Child
None of these things work if he just ignores the law, which is what the whole suit is about.
posted on 07/31/2014 11:56:00 AM PDT
If we has some sort of guarantee that this could be completely litigated and a opinion issued by Jan 1, 2015, I could get a little excited about this.
But we all know that won’t happen. Not even close.
I’d bet money this is not finally resolved until after nobama is gone in 2017.
Looks to me like the best bet is: take the Senate in November. Immediately start passing bills in the House to cut the executive’s spending. I realize nobama won’t sign it if it gets to his desk and we won’t have enough pubbies in Congress to override a veto. But I don’t see any other way. Any ideas?
It’s a shame the Founding Fathers didn’t make provisions in the founding documents to stop something like this. But who would have guessed that someday we’d have a President that was fully evil?
posted on 07/31/2014 12:15:56 PM PDT
(It's a shame nobama truly doesn't care about any of this. Our country, our future, he doesn't care.)
To: Responsibility2nd; xzins
Weeks ago, Boehner announced that the lawsuit would focus on the delay of Obamacare's employer mandate.
Boy you couldn't have played more into Obama's hands if you wanted to. Think about this. Boehner is suing because Obama is not destroying our economy by pressing this mandate. Obama must be laughing his ass off right now.
Now all Obama has to do is to begin enforcing the provision and then he can blame the Republicans for the damage that is done. The Republicans made me do it.
They don't call them the Stupid party for nothing.
posted on 07/31/2014 12:48:53 PM PDT
(There can be no Victory without a fight and no battle without wounds)
Isn't Boehner's lawsuit bassakwards? Who wants to force employer mandates??? Obama is refraining from acting and nobody wants him to act, and Boehner wants to force him to act.
Instead of this, can't they go after Obama for stuff he's illegally and unconstitutionally doing that nobody wants him to do?
posted on 07/31/2014 2:48:48 PM PDT
(Freedom always wins the debate in the forum of ideas)
Just impeach the guy. Stop this suing nonsense.
I hope it doesn’t fly becasue of the threat of loosening standing requirements. I agree with Scalia, that standing is an important aspect of keeping the Constitution out of permanent “court receivership.”
posted on 07/31/2014 2:55:51 PM PDT
(Freedom always wins the debate in the forum of ideas)
posted on 07/31/2014 5:51:03 PM PDT
(Firearms and ammunition...the only growing industries under the Obama regime.)
The courts badly need to reconsider “standing”. It limits too many cases. They’ve tied their own hands. At the very least they need some well defined exceptions to standing. Possibly they need to reconsider the definition of harm to include laws not being followed.
posted on 08/01/2014 10:24:27 AM PDT
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