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Can Congress sue the President?

U.S. Speaker of the House Rep. John Boehner (R-OH) speaks during a news briefing June 19, 2014 on Capitol Hill in Washington, DC
U.S. Speaker of the House Rep. John Boehner (R-OH) speaks during a news briefing June 19, 2014 on Capitol Hill in Washington, DC
Photo by Alex Wong/Getty Images

The US House of Representatives is preparing to file a lawsuit against president Obama for overstepping his authority and acting beyond the scope of his office. This not only has the potential to be a historic and precedent setting case, it could represent the first real discussion of how our system of checks and balances should function in the modern era. The lines of authority between Congress and the President don’t get much press; yet the roles and authorities established in the Constitution are believed by many to be essential to ensuring our system functions as intended.

Generally, Congress is empowered to enact legislation. Within that authority the House has the power of the purse, developing spending authorizations to send to the Senate, while the Senate ratifies treaties and provides “advice and consent” for Presidential appointments. The President on the other hand is charged with “faithful execution of the laws” passed by Congress and managing the executive branch. For most of our early history the President functioned mostly as a “chief clerk”. Around the 1920s things began to change as early mass media allowed Presidents to speak directly to the American people and the office became more imperial in form and in function. Fast forward to President Obama; the suit will allege he refuses to enforce laws with which he disagrees while attempting to use regulatory authority and executive orders to accomplish items from his agenda that Congress will not pass. Essentially that the President is unlawfully nullifying the power authority of Congress.

Based on how the suit is expected to read, Congress will argue that President Obama’s executive actions constitute harm done to Congress buy nullifying their authority. According to Washington, D.C. attorney David Rivkin of Baker Hostetler LLP and Elizabeth Price Foley, a professor of law at Florida International University College of Law, Congress must do two things to demonstrate that they have legal standing to bring the case forward. They must be able to demonstrate that as an institution, Congress is an aggrieved party. Second they must show that as the US Congress, they have the authority and permission to bring such a suit.

"But individual members of Congress do not have standing to sue because they are not legally recognized as injured parties. Congress as an institution, on the other hand, may sue on the grounds that there has been institutional injury done because its legislative powers have been nullified."

In many ways this case goes beyond just Obama and Boehner. The arguments Speaker Boehner is making regarding Obama's actions as president have been used against any number of previous presidents going back to at least Woodrow Wilson. There is a body of thought in the academic community that the last 50 years have seen Congress abrogate their role and Presidents amass levels of power unintended by the founders. If the House moves forward with filing this suite they would likely be asking the Court to render a broad decision about the proper roles and functions of the Executive and the Legislature in the modern era.