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Republicans' lawsuit would negate Constitution's '3-Co-equal Branches'

Speaker of the House John Boehner indicates that his plan to sue President Obama for delaying implementation of one provision of the Affordable Care Act is only the precursor to a flurry of suits over executive orders.
Speaker of the House John Boehner indicates that his plan to sue President Obama for delaying implementation of one provision of the Affordable Care Act is only the precursor to a flurry of suits over executive orders.
© 2014 Karen Rubin/

Never in US history has the House of Representatives sued a sitting president. But Boehner's Republicans are voting to do just that.

Some are saying that the lawsuit is a "fig leaf" to the rabid Tea Partyers who have been calling for impeachment since before Obama was first sworn into office.

I think it is only the precursor - the excuse - just as the lawsuit against President Clinton became the basis for his impeachment (having nothing to do with High Crimes & Misdemeanors, which the Constitution says is the only basis for impeachment).

Boehner, who uses his crocodile tears to cry that the President's action - or in this case non-action - in face of House Republicans' chronic inaction - does injurious harm threatens to undermine Congress.

"I believe this path is the right one to defend our institution and preserve the Constitution, while continuing to focus on the American people's top priority — helping our private sector create more American jobs," Boehner wrote in an absurd op-ed in USA Today (July 27).

Except that to bring a lawsuit, you actually have to show injury, and set some remedy.

Boehner and the House Republicans can't show injury for the alleged "offense" - Obama allowing a delay in a provision of the Affordable Care Act (Obamacare) requiring small businesses to provide health insurance, when, even as he admits, his claque wants to repeal that provision and the whole act.

"I oppose the employer mandate in the president's health care law," Boehner wrote. "The House of Representatives has voted to delay or eliminate it (and we will do so again if we prevail in court). But it is the letter of the law that was passed by Congress and signed by President Obama. He simply cannot unilaterally rewrite it."

That, on its face, is outrageous, since these very same House Republicans who claim to be injured have been trying to repeal the entire bill 50 times, even going so far as to threaten to put the entire Country into default, and shutting down federal government for a month.

But there is no basis - no standing - for this lawsuit.

Indeed, if a federal judge did grant "standing" it would overturn the whole concept of separate, co-equal branches, by giving one branch - and not even one branch, but half of one House, the power to control the Executive Branch (the only official elected by the entire nation, and not just a piece of it).

Forget the fact that the Constitution disallows suing a sitting President - which the Supreme Court conveniently set aside in allowing the civil suit against President Clinton to go forward (at the time, the comment was that the civil suit shouldn't detract the president's attention from the important affairs of state).

Even conservative Republicans - even that most conservative Supreme Court Justice Scalia - have said in so many words that the suit has no basis, would set an intolerable precedent, and basically is "ridiculous."

If Boehner's lawsuit on this one tiny issue - granting a delay in implementing the one provision of the ACA - then it will unleash a blizzard of lawsuits - the latitude granted Dreamers not to be deported, for example, as Boehner has already indicated.

"I believe the president's actions in a number of areas — including job-destroying energy regulations, releasing the 'Taliban 5' from Guantanamo without notice and waiving the work requirements in welfare — exceed his constitutional authority," Boehner stated.

If delaying implementation were a legal offense, then Senate Republicans would be guilty of scores of them - refusing to allow confirmation of the head of the Consumers Financial Protection Board, as a way to block the implementation of the law altogether, as just one example.

But let's consider the absurdity of this lawsuit, and the ramifications.

Here's the text of the authority that Boehner is seeking:

Resolved, That the Speaker is authorized to initiate or intervene in one or more civil actions on behalf of the House of Representatives in a Federal court of competent jurisdiction to seek any appropriate relief regarding the failure of the President, the head of any department or agency, or any other officer or employee of the executive branch, to act in a manner consistent with that official’s duties under the Constitution and laws of the United States with respect to implementation of any provision of the Patient Protection and Affordable Care Act, title I or subtitle B of title II of the Health Care and Education Reconciliation Act of 2010, including any amendment made by such provision, or any other related provision of law, including a failure to implement any such provision.

Under that provision, just about every president should have been sued.

As Timothy Egan wrote in a New York Times op-ed, "The sainted Ronald Reagan issued 381 executive orders. The benign Dwight Eisenhower rolled out 484 of them. And Calvin Coolidge — Silent Cal, hero of young fogies in bow ties, asleep at the presidential wheel — signed more than 1,200 executive orders. Sue ’em all, retroactively."

But you know who should be sued for "failing to implement the laws"? Congress.

Senate Republicans, defying their Constitutional obligation to "advise and consent" on Presidential nominations but Senate Republicans, though in the minority, have used their power to block nominations from being "advised", let alone "consented."

The House, in violation of their Constitutional obligation, refused to raise the debt ceiling - essentially failing to pay the government's debts as Constitutionally mandated - and refused to authorize funding, shutting down government, altogether.

The House has also refused to provide the appropriations to implement the laws that Congress has already passed - defunding the Affordable Care Act, for example, the Consumer Financial Protection Board and the other elements of Dodd-Frank financial reform, even the IRS.

And is there anything more hypocritical than The House attacking President Obama for following a Bush-era law mandating that unaccompanied minors from non-contiguous countries be granted due process to adjudicate their claims for asylum before being deported?

But the more damning - and ignored - arguments came from legal Conservative jurists themselves:

"I am entirely persuaded, based on nearly a half-century of study and writing about our Constitution, that the proposed lawsuit would represent a wholly meritless attempt to invoke the jurisdiction of the federal judiciary at the behest of an institution that cannot plausibly allege, much less demonstrate, any distinctive injury to itself or its members and that therefore lacks standing under settled Article III principles to litigate this matter," Harvard Law Professor Laurence H. Tribe stated in his testimony.

"I am persuaded as well that, quite apart from the palpable lack of standing on the part of the House, the contemplated lawsuit would seek to vindicate a claim that manifestly lacks any legal merit. Finally, I am convinced that the lawsuit the Speaker asks this body to authorize would invoke the jurisdiction of the federal courts to entertain an obviously non-justifiable political question with respect to which the political branches are more than capable of defending their respective prerogatives without the interference of the judicial branch....

"Whatever might be motivating this misguided and potentially costly effort, I would urge the House not to facilitate it and thereby distort the carefully calibrated system of checks and balances that has stood our Republic in good stead for over two centuries."

Charles Tiefer of the University of Baltimore Law School called Boehner's lawsuit "an embarrassing loser," testifying that "the House does not have any standing for anything remotely like this 'faithful execution' case because the courts know the House has no 'injury in fact.'...Like so much self-delusion about this embarrassing loser, that would be a flight of fantasy. ....[judges] don't want to have anything to do with Capitol Hill politics."

Ah, checks and balances.

Consider the precedent that Boehner's lawsuit would establish.

The Constitution provides for three "co-equal" branches of government, but if Boehner is successful in saying that one half of half of one branch can sue the Executive Branch, that would give unequal power to control the Executive Branch.

Indeed, in 1981, when Senator McClure attempted to sue President Carter, the court stated: "under article III of the Constitution federal courts may decide only cases and controversies properly brought before them, by parties with sufficient stake in the dispute to ensure that a decision by the courts is not inconsistent with the limited role the courts must play within our tripartite federal system of government. The fact that the statute makes senators and members of the House, and no others, 'enforcers' of the Constitution in the judicial forum implicates special concerns regarding the separation of powers.

The court warned against the dangerous precedent:

"Members of Congress are the democratically-elected representatives of the people, chosen by them to enact the laws of the United States, to advise and consent to the appointment of policy-makers in the executive branch and judges in the judicial branch, and to perform certain other functions prescribed by the Constitution. The statute under which Senator McClure brings this suit casts members of Congress in the role of special attorneys general. . . .. To allow members of Congress to change hats, as it were . . ., would, we suggest, set a dangerous precedent. We find that this court does not have jurisdiction, and we accordingly dismiss."

Even Justice Scalia - the guy who tossed precedent and the Constitution out to the wind in Bush v Gore - was cited by Congresswoman Louise Slaughter, the Rules Committee's ranking member: In Windsor v.United States, Justice Scalia wrote that the framers of the Constitution emphatically rejected a “system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President…implements a law in a manner that is not to Congress’s liking.”

Just recently, Federal Judge William C.Griesbach dismissed a suit brought by U. S. Senator Ron Johnson regarding how members of Congress and their staffs would get healthcare, ruling, “Under our constitutional design, in the absence of a concrete injury to a party that can be redressed by the courts, disputes between the executive and legislative branches over the exercise of their respective powers are to be resolved through the political process, not by decisions issued by federal judges.”

Slaughter stated, "It was this Senator Johnson case that was almost identical to the suit you want to bring against the President. In both cases, it is some part of Congress asking a judge to second-guess the precise way the Executive Branch has exercised its constitutional power to carry out the law. Senator Johnson’s case had the same weakness as Speaker Boehner’s – there’s no injury."

And by the way, what would be the remedy if in the extraordinary circumstance, politically activist judges first allowed the suit to go forward, and second agreed with Boehner that the president could not delay implementation of the rule requiring corporations to provide medical care?

Well, the remedy would be that the corporations would no longer have the extra time, and would have to immediately implement the provision.

How ironic because it is almost the antidote to the other Republican-activist judges on the three-member DC panel that overturned the ability of the federal government to provide subsidies to qualified individuals seeking health insurance on the exchange because the law expressly stated "state exchanges." (Another federal court came to the opposite conclusion in saying the federal government could provide the subsidies).

If that decision is upheld, five million people would lose their subsidy, making health insurance unaffordable and therefore losing access to health care. This would be in the very states where Republicans (mainly) have done everything possible to destroy Obamacare - indeed, leaving 5 million uninsured who otherwise would qualify for Medicare coverage.

Ironically, I would bet that millions of these would actually be covered because their employers would now have to immediately provide access to health insurance.

This would be an example of Republicans wanting it both ways - or more precisely, their way, all the time.

The Democrats on the Rules Committee tried almost comically to embarrass the Republicans by attempting to insert amendments requiring a disclosure of how much taxpayer funding would be funneled into the stunt - the Republicans' legal campaign to support the Defense of Marriage Act cost taxpayers $2.3 million.

Slaughter stated "I hope that’s a clear enough explanation of why this lawsuit is without a foundation in any court precedent, but if the Majority insists on proceeding with this political exercise, the least they can do is amend this resolution to ensure accountability and transparency."

Not to mention that in the outrageously brief number of days that Boehner allows for the House to actually function - the House will be on vacation throughout August and into September, then only has a few days to "work" before going off for its campaign season before November election day - the only "business" Boehner seems to have time for is this preposterous lawsuit. Not addressing the humanitarian crisis on the border. Not taking up the dire need to reauthorize the "kick-the-can-down-the-road patch to the Highway Trust Fund, or even the more substantive Grow America Act, which actually would create jobs that Boehner, mantra-like, keeps insisting he wants the President to do; not dealing with funding for Israel to replenish its Iron Dome against Hamas terror attacks. Certainly not taking up the Immigration Bill that passed the Senate a year ago (Boehner says he had no time). The list goes on and on.

The fact that the lawsuit is being chided as "embarrassing," that it contradicts the Republican obsession with "wasteful spending" (wasteful only when spending actually benefit ordinary Americans) and likely to be thrown out by any federal judge who actually knows and values the Constitution doesn't bother Boehner or the Republicans.

Because this is political - not just a stunt to "rally" the rabid base that despises Obama and anything Obama proposes, even when his proposals have originated with Republicans (Obamacare was a Heritage Foundation concept; Obama's plan to address the humanitarian crisis on the border was first proposed by Boehner himself) - but it is intended to double-down on the original plan: stop Obama's agenda in its tracks.

This is a step up the slippery slope of the non-ending investigations being mounted by Daryl Issa - Benghazi, IRS, Fast and Furious - also intended to discredit, delegitimize but ultimately obstruct the President.

This is only the tip of the iceberg.

Now, the Republicans are inserting bans on any executive action or executive order in all the appropriations bills they pass - for example, banning executive order that would allow more humanitarian treatment of undocumented immigrants (expanding on the Deferred Deportation order for Dreamers), banning the President's ability to issue executive orders addressing climate change or environmental protection; even removing the President's ability to designate national monuments (too many precious national resources were being removed from commercial development, can't have that).

In H.R. 5016, the Financial Services and General Government Appropriations Act, 2015, for example, a section was inserted that would prohibit the use of funds for officers or employees of the Executive Office of the President "to prepare, sign, or approve statements abrogating legislation passed by the House of Representatives and the Senate and signed by the President," and section 204 would prohibit the use of funds for such officers and employees "to prepare or implement an Executive Order that contravenes existing law," the OMB wrote in a statement.

"Contrary to the implication of section 203, presidential signing statements do not abrogate legislation. They indicate how the Executive Branch would apply acts of the Congress to ensure faithful execution of the laws. Similarly contrary to the implication of section 204, executive orders are designed to implement the law, not to contravene it. ....these provisions would impermissibly encroach upon the President's constitutional authority to execute and interpret Federal laws, including the Constitution."

On the other hand, if the authority to issue executive orders were removed, that would make the Speaker of the House - a person elected by thousands in his hometown versus a president who is elected by millions for the only office elected by a national electorate - the most powerful individual in the country. That's because the Speaker of the House has the ability to refuse to bring legislation to the floor - for example Immigration Reform, background checks for guns.

Constitution. Smonstitution. They don't care.

Suing the President is a win-win-win for Republicans - they get to show their "base" they are standing up to the "tyrant," the "illegitimate occupier of the White House"; they get to deprive Obama (and Democrats) of any successes which might restore confidence in the ability of government to actually benefit people and Democrats' approach specifically; they get to foment and exacerbate the frustration and cynicism against politicians generally, which will suppress voter turnout except for the aforementioned rabid anti-Obama voters, and it will essentially neuter the Presidency.

Indeed, the Right Wing Republicans have decided that blocking immigration reform altogether is preferable to addressing it and perhaps winning some Hispanics back to their fold, which would be essential in order to ever win a national election again.

They have decided they don't care about Hispanics or women because they don't need to win the Presidency, because this branch of government will be irrelevant, just another bureaucrat doing the bidding of Congress - or in this case, half of one House of one branch of Government, and less than one-half of the other half.

See also:

No Precedent for This Supreme Court

Karen Rubin, Long Island Populist Examiner
© 2014 News & Photo Features Syndicate, a division of Workstyles, Inc. All rights reserved. For editorial feature and photo information, go to or email 'Like' us on

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