The Boehner Lawsuit Against Obama Is Beginning to Take Shape

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

WASHINGTON, DC - JUNE 11: U.S. Speaker of the House John Boehner (R-OH) walks to his office at the U.S Capitol in Washington, DC June 11, 2014 in Washington, DC. Yesterday House Majority Leader Eric Cantor (R-VA) lost his Virginia primary to Tea Party challenger Dave Brat. (Photo by Win McNamee/Getty Images)
National Journal
July 8, 2014, 10:32 a.m.

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.

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.”

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