The Boehner Lawsuit Against Obama Is Beginning to Take Shape

Flickr user talkradionews

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 aliens.

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 workarounds.

"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."

Stay up-to-date with federal news alerts and analysis — Sign up for GovExec's email newsletters.
FROM OUR SPONSORS
JOIN THE DISCUSSION
Close [ x ] More from GovExec
 
 

Thank you for subscribing to newsletters from GovExec.com.
We think these reports might interest you:

  • Sponsored by Brocade

    Best of 2016 Federal Forum eBook

    Earlier this summer, Federal and tech industry leaders convened to talk security, machine learning, network modernization, DevOps, and much more at the 2016 Federal Forum. This eBook includes a useful summary highlighting the best content shared at the 2016 Federal Forum to help agencies modernize their network infrastructure.

    Download
  • Sponsored by CDW-G

    GBC Flash Poll Series: Merger & Acquisitions

    Download this GBC Flash Poll to learn more about federal perspectives on the impact of industry consolidation.

    Download
  • Sponsored by One Identity

    One Nation Under Guard: Securing User Identities Across State and Local Government

    In 2016, the government can expect even more sophisticated threats on the horizon, making it all the more imperative that agencies enforce proper identity and access management (IAM) practices. In order to better measure the current state of IAM at the state and local level, Government Business Council (GBC) conducted an in-depth research study of state and local employees.

    Download
  • Sponsored by Aquilent

    The Next Federal Evolution of Cloud

    This GBC report explains the evolution of cloud computing in federal government, and provides an outlook for the future of the cloud in government IT.

    Download
  • Sponsored by Aquilent

    A DevOps Roadmap for the Federal Government

    This GBC Report discusses how DevOps is steadily gaining traction among some of government's leading IT developers and agencies.

    Download
  • Sponsored by LTC Partners, administrators of the Federal Long Term Care Insurance Program

    Approaching the Brink of Federal Retirement

    Approximately 10,000 baby boomers are reaching retirement age per day, and a growing number of federal employees are preparing themselves for the next chapter of their lives. Learn how to tackle the challenges that today's workforce faces in laying the groundwork for a smooth and secure retirement.

    Download
  • Sponsored by Hewlett Packard Enterprise

    Cyber Defense 101: Arming the Next Generation of Government Employees

    Read this issue brief to learn about the sector's most potent challenges in the new cyber landscape and how government organizations are building a robust, threat-aware infrastructure

    Download
  • Sponsored by Aquilent

    GBC Issue Brief: Cultivating Digital Services in the Federal Landscape

    Read this GBC issue brief to learn more about the current state of digital services in the government, and how key players are pushing enhancements towards a user-centric approach.

    Download
  • Sponsored by CDW-G

    Joint Enterprise Licensing Agreements

    Read this eBook to learn how defense agencies can achieve savings and efficiencies with an Enterprise Software Agreement.

    Download
  • Sponsored by Cloudera

    Government Forum Content Library

    Get all the essential resources needed for effective technology strategies in the federal landscape.

    Download

When you download a report, your information may be shared with the underwriters of that document.