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Can Congress sue Obama?

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In a word, no.

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Wednesday morning the Speaker of the House, John Boehner, told reporters that he was considering legislation authorizing a lawsuit on behalf of Congress against President Obama for violation of unspecified executive orders. The ostensible basis for the suit would be the president’s alleged failure to faithfully execute the laws as written.

While such a lawsuit might have political merits for Republicans in the run-up to the midterm elections, it would not be legally meritorious.

The Boehner Complaint faces at least two preliminary hurdles:

  1. lack of Congressional standing to sue; and
  2. lack of a justiciable dispute based on the political question doctrine

We recently learned in the Proposition 8 case, Hollingsworth v. Perry, that courts will only hear actual “cases” or “controversies” under Article III of the Constitution. In other words, a litigant may only seek a remedy for a personal and tangible harm. If litigants’ only interest is to vindicate the constitutional validity, or invalidity, of a generally applicable law, they lack standing to sue. The Supreme Court has repeatedly held, such a “generalized grievance” insufficient to confer standing.

The Roberts Court has shown no problem in abrogating longstanding judicial precedent when it was an obstacle to conservative jurisprudence. Still, except under Obama, there has not been a big push on the right to establish some new doctrine of Congressional standing that may be exercised by the institution as a whole. In fact, to do so would run up against the second hurdle that a Boehner action would face: the concept that the separation of powers between the executive and legislative branches dictates that the least dangerous branch, the judiciary, not place its thumb on the scales.

As nicely summarized in a recent International Trade Court opinion:

“The political question doctrine, recognizing our constitutional separation of powers principle, does exclude some disputes from judicial determination. Under this doctrine, a subject matter is not appropriate for judicial resolution where it is exclusively assigned to the political branches or where such branches are better-suited than the judicial branch to determine the matter. [See Baker v. Carr, 369 U.S. 186, 211 (1962); Japan Whaling Association v. Am. Cetacean Society, 478 U.S. 221, 230 (1986) ("The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as `courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.'") [Citation.]”

The factors as enunciated in Baker v. Carr, for deciding whether a political question is present are as follows:

  1. a textually demonstrable constitutional commitment of the issue to a coordinate political department;
  2. or a lack of judicially discoverable and manageable standards for resolving it;
  3. or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
  4. or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
  5. or an unusual need for unquestioning adherence to a political decision already made;
  6. or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Some of the suggested executive orders that may be the subject of the Boehner Complaint include (1) delaying certain implementation deadlines for the Affordable Care Act; (2) reallocating appropriations under the Affordable Care Act; (3) deferred action to stop deportation of undocumented aliens who arrived as children; and (4) raising the minimum wage and giving other protections to federal contractors.

Leave aside the fact that Obama is actually issuing executive orders at a rate more slowly than any president since Grover Cleveland.

The courts have often applied the political question doctrine to find a lack of justiciability in cases arising from the president’s exercise of his conduct of military and foreign policy. Obamacare and immigration might be too tempting of targets for the conservative Supreme Court to ignore.

But the Chief Justice, most particularly in the Proposition 8 case, has shown that he is not interested in the Court wading into controversies in which it does not belong, which might further tarnish the reputation of the Court. It is a little more than ironic that the same Republicans who for decades have decried judicial activism are now looking to the courts to do their bidding against the Executive Branch. And it is hard to think of an example of a more truly “political question” than the President’s use of executive orders to take action where a “do-nothing” Congress under the minority control of a recalcitrant Tea Party faction has failed to act on so many issues for so long.

Boehner has a constitutional remedy for his grievances, if he’s willing to use it – it’s called impeachment. And there is a political answer for why Republicans won’t pursue it against another Democratic president: because it’s a political loser.

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