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
Billy House
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.”

What We're Following See More »
BIG CHANGE FROM WHEN HE SELF-FINANCED
Trump Enriching His Businesses with Donor Money
12 hours ago
WHY WE CARE

Donald Trump "nearly quintupled the monthly rent his presidential campaign pays for its headquarters at Trump Tower to $169,758 in July, when he was raising funds from donors, compared with March, when he was self-funding his campaign." A campaign spokesman "said the increased office space was needed to accommodate an anticipated increase in employees," but the campaign's paid staff has actually dipped by about 25 since March. The campaign has also paid his golf courses and restaurants about $260,000 since mid-May.

Source:
QUESTIONS OVER IMMIGRATION POLICY
Trump Cancels Rallies
21 hours ago
THE LATEST

Donald Trump probably isn't taking seriously John Oliver's suggestion that he quit the race. But he has canceled or rescheduled rallies amid questions over his stance on immigration. Trump rescheduled a speech on the topic that he was set to give later this week. Plus, he's also nixed planned rallies in Oregon and Las Vegas this month.

Source:
‘STRATEGY AND MESSAGING’
Sean Hannity Is Also Advising Trump
1 days ago
THE LATEST

Donald Trump's Fox News brain trust keeps growing. After it was revealed that former Fox chief Roger Ailes is informally advising Trump on debate preparation, host Sean Hannity admitted over the weekend that he's also advising Trump on "strategy and messaging." He told the New York Times: “I’m not hiding the fact that I want Donald Trump to be the next president of the United States. I never claimed to be a journalist.”

Source:
THE SHAKE-UP CONTINUES
RNC’s Spicer to Work from Trump HQ
1 days ago
THE LATEST

"Donald Trump's campaign and the Republican party will coordinate more closely going forward, with the GOP's top communicator and chief strategist Sean Spicer increasingly working out of Trump campaign headquarters, the campaign confirmed Sunday."

Source:
MORE PALACE INTRIGUE
Manafort Resigns from Trump Campaign
4 days ago
THE LATEST

In a statement released Friday morning, the Trump campaign announced that Paul Manafort has resigned as campaign chairman. The move comes after fresh questions had been raised about Manafort's work in Russia and Ukraine, and Trump brought in Stephen Bannon "as a de facto demotion for Manafort."

Source:
×