Monday, July 28, 2014

Boehner's lawsuit against Obama, explained

Mark Wilson, Getty Images News

On Thursday, Speaker John Boehner released a draft resolution authorizing the House of Representatives to sue President Obama over the delay of Obamacare's employer mandate. Is there any precedent for this suit? How would it proceed? We answer your questions below.

Has the House of Representatives ever sued the president before?

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House swearing-in, 2013. Photo: Saul Loeb/AFP

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?

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Former Rep. Dennis Kucinich. Tom Williams, CQ-Roll Call Group

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.

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?

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David Rivkin. Photo: Alex Wong/Getty

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:

  1. 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.
  2. 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.
  3. 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.

What do people think of these arguments?

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Andrew McCarthy. Photo: Chip Somodevilla/Getty

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 agreed, 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."

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?

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John Boehner. Photo: Scott J. Ferrell, CQ-Roll Call Group

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.

On Thursday, 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?

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The Supreme Court. Photo: Alex Wong/Getty

Boehner will introduce a bill that would authorize the House of Representatives to file suit. After consideration in hearings by the House Rules Committee, if approved, the full House would take a vote on whether to sue.

Since the suit would be filed on behalf of the US House of Representatives, Boehner plans to 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 would be 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 would 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?

Publicly, they haven'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 this weekend, "As I used to tell clients in private practice, anybody can sue anybody over anything."

What are the broader implications?

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Justice Antonin Scalia. Photo: Chip Somodevilla / Getty

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.

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