Speaker Boehner Planning House Lawsuit Against Obama Executive Actions. HT:
InfidelBloggers.
Roll Call:
Speaker John A. Boehner, R-Ohio, told Republicans Tuesday he could have an
announcement within days on whether the House will file a lawsuit against
President Barack Obama, challenging the executive actions that have become the
keystone of the administration.
The lawsuit could set up a significant test
of constitutional checks and balances, with the legislative branch suing the
executive branch for ignoring its mandates, and the judiciary branch deciding
the outcome.
Boehner told the House Republican Conference during a
closed-door meeting Tuesday morning that he has been consulting with legal
scholars and plans to unveil his next steps this week or next, according to
sources in the room.
Boehner spokesman Michael Steel said further action is
necessary because the Senate has not taken up bills passed by the House
targeting executive actions. The House has
passed a bill expediting court consideration of House resolutions
starting lawsuits targeting executive overreach and another mandating that
the attorney general notify Congress when the administration decides to take
executive action outside of what has been authorized by Congress.
“The
president has a clear record of ignoring the American people’s elected
representatives and exceeding his constitutional authority, which has dangerous
implications for both our system of government and our economy,” Steel said.
“The House has passed legislation to address this, but it has gone nowhere in
the Democratic-controlled Senate, so we are examining other options.”
It remains unclear which executive action or actions
the House would challenge, but Obama has given Congress ample targets. In the
last several years, he has issued executive actions halting deportations of
hundreds of thousands of immigrants who came to the country as children,
extending the family and medical leave benefits to gay couples and raising the
minimum wage for federal contractors. He has also worked around legislative
deadlines for enacting provisions of the Affordable Care Act and issued other
executive actions relating to the environment and the gender and race pay
gap.
Obama has said he takes executive action because of a divided Congress’
inability to pass laws targeting important issues of the day. Congressional
Republicans contend such actions are unconstitutional and thwart Congress’
power.
But individual members of Congress do not have standing to sue because
they are not legally recognized as injured parties. Congress as an institution,
on the other hand, may sue on the grounds that there has been institutional
injury done because their legislative powers have been nullified.
One path
Boehner could take would be to convene the Bipartisan Legal Advisory Group, a
panel of leaders created in 1993 that votes on whether or not to sue on behalf
of the House. The group consists of the speaker, the majority leader, the
majority whip, the minority leader and the minority whip, and it would act on a
majority vote.
Boehner last convened the group when
the Obama administration dropped its defense of the Defense of
Marriage Act in 2011. The House has since dropped its challenge of the law. At
the time, however, Minority Leader Nancy Pelosi of California
objected to the challenge holding that it was an unwarranted
way to spend taxpayer money. Her spokesman, Drew Hammill, said she will likely
object similarly if Boehner moves forward with a lawsuit against the
president.
“While the urgent needs of the American people are ignored by
House Republicans, it is reprehensible that Speaker Boehner plans another
doomed, legal boondoggle after he spent $2.3 million in taxpayer dollars
unsuccessfully defending discrimination in federal courts,” Hammill
said.
Boehner’s legal theory is based on work by Washington, D.C., attorney
David Rivkin of Baker Hostetler LLP and Elizabeth Price Foley, a professor of
law at Florida International University College of Law.
Rivkin said in an
interview that in addition to proving institutional injury, the House would have
to prove that as an institution, it has authorized the lawsuit. A vote by the
Bipartisan Legal Advisory Group would do so.
The suit would also have to
prove that no other private plaintiff has standing to challenge the particular
suspension of executive action and that there are no other opportunities for
meaningful political remedies by Congress, for instance by repeal of the
underlying law.
“Professor Foley and I feel that if those four conditions are
met, the lawsuit would have an excellent chance to succeed. This is particularly
the case because President Obama’s numerous suspensions of the law are
inflicting damage on the horizontal separations of powers and undermine
individual liberty,” Rivkin said.
Rivkin and Foley have argued in op-eds that
most of Obama’s executive orders have been benevolent — that is, they have
exempted classes of citizens from the law, for instance through deferred action
for childhood arrivals. Therefore, no individual has standing to sue because the
actions have helped people. Congress as an institution, however, can sue because
the actions flout the laws they have passed.
They have argued that short of
impeachment, there is no other check to the president’s issuance of executive
actions.
Related ! What Congress can do about Obama’s rewriting of laws.
New York Post: By George F. Will
What philosopher Harvey Mansfield calls “taming the
prince” — making executive power compatible with democracy’s abhorrence of
arbitrary power — has been a perennial problem of modern politics.
It is now
more urgent in America than at any time since the Founders, having rebelled
against George III’s unfettered exercise of “royal prerogative,” stipulated that
presidents “shall take care that the laws be faithfully executed.”
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 the Affordable Care Act.
That law
required the employer mandate to begin this year. But Obama wrote a new law,
giving to certain-sized companies 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 standing can be
obtained conditional on four things:
That a majority of one congressional
chamber explicitly authorize 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’ 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’ power.
Authorization of this lawsuit by the House would give Congress “standing” to
sue.
Congress’ authorization, which would affirm an institutional injury
rather than some legislators’ personal grievances, satisfies the first
criterion. Obama’s actions have fulfilled the rest by nullifying laws and
thereby rendering the Constitution’s enumeration of Congress’ power
meaningless.
The House has passed Rep. Trey Gowdy’s (R-SC) bill that would
guarantee expedited consideration by federal courts of House resolutions
initiating lawsuits to enforce presidents to “faithfully execute” laws. But as a
bill, it is impotent unless and until Republicans control the Senate and a
Republican holds the president’s signing pen.
Some say the judicial branch
should not intervene because if Americans are so supine that they tolerate
representatives who tolerate such executive excesses, they deserve to forfeit
constitutional government.
This abstract doctrine may appeal to moralists
lacking responsibilities. For the judiciary, it would be dereliction of the duty
to protect the government’s constitutional structure. It would be perverse for
courts to adhere to a doctrine of congressional standing so strict that it
precludes judicial defense of the separation of powers.
Advocates of extreme
judicial quietism to punish the supine people leave the people’s representatives
no recourse short of the extreme and disproportionate “self help” of
impeachment.
Surely courts should not encourage this. The cumbersome and
divisive blunderbuss process of impeachment should be a rare recourse.
Furthermore, it would punish a president for anti-constitutional behavior, but
would not correct the injury done to the rule of law.
Surely the Republican
House majority would authorize a lawsuit. And doing so would establish Speaker
John Boehner as the legislature’s vindicator.
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Boehner must
have been listening:
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