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Suing the President

Speaker of the House John Boehner has announced that he will ask the House to sue the president. “My view is the president has not faithfully executed the laws,” he said. “What we have seen clearly over the last five years is an effort to erode the power of the Legislative Branch.”

What Boehner is referring to is such presidential actions as unilaterally rewriting large sections of the Affordable Care Act, and ordering the Immigration service to not enforce the portions of immigration law that would have been repealed had Congress passed the “Dream Act,” which it did not. All presidents, other than, perhaps, James Madison, sought to extend their powers, but President Obama has been far more aggressive than most.

But it is difficult to rein in a president through legal action, as no one, including individual members of Congress, has standing to sue to get the courts to require the president to faithfully execute the laws as Congress passed them. As far as I know, neither Congress nor either of its houses has ever sued the president as a body. But that is what Boehner is now proposing. It will be interesting to see how far it gets as the courts have always been notably reluctant to decide a “political question.”

But as George Will writes, “Congress cannot reverse egregious executive aggressions such as Obama’s without robust judicial assistance.” Without it, Congress’s only weapon to protect its constitutional powers is the thermonuclear one of impeachment. He writes,

David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe that standing can be obtained conditional on four things:

That a majority of one congressional chamber explicitly authorizes 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’s power.

But Lyle Denniston of the National Constitution Center has his doubts the courts will get involved:

The courts can be jealous guardians of their notion of what the Constitution allows, or does not allow, in terms of judicial review. The resistance to resolving political disputes is quite deeply set.  One might suggest that it would take an inter-branch controversy of monumental proportions to cause them to give up that reluctance. Is the feud over President Obama’s use of his White House powers of that dimension? That may well be debatable.

This should be interesting.


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