The Whys And Wherefores Of Suing The President

In his weekly press conference June 25, 2014, House Speaker John Boehner confirmed that he will initiate a lawsuit on behalf of the House against President Obama over the administration’s use of executive actions. Boehner asserted:

“This is about defending the institution in which we serve. What we’ve seen clearly over the last five years is an effort to erode the power of the legislative branch. I believe the President is not faithfully executing the laws of our country and, on behalf of the institution and our constitution, standing up and fighting for this is in the best long-term interest of the Congress.”

When questioned by a reporter as to what specific executive actions he plans to challenge in court, Boehner replied, “When I make that decision, I’ll let you know.”

While undoubtedly we’d all like to know this, it isn’t as important as knowing what led Boehner to take such an adversarial position and if, in his capacity as Speaker of the House, he actually has standing to sue the President.

The timing of Boehner’s announcement has led some to ask “So is this the result of the Cantor loss?” The answer, however, is more complex. Certainly Cantor’s defeat is a contributing factor. He was after all among those who met the night of Obama’s inauguration in 2009 to plot the new President’s downfall. It must be galling for him that he is forced to leave Congress before achieving that goal so he may well be pushing for stronger and more damning action while he is still there.

Cantor’s primary defeat also led to McCarthy holding closed-door meetings with tea party members, promising them all kinds of support in order to secure their votes in the election for House Majority Leader. In a Daily Kos article, I looked at how these promises to the tea party has imperiled the Export-Import Bank but it wasn’t the only promise McCarthy made to them. It’s clear from what he’s said publicly that his positions are motivated by his need to keep in their good graces in order to retain his newly-acquired position come the re-election in November.

There’s no doubt that Boehner has been affected by the leadership shuffle. In a letter to House members, Boehner wrote that he will bring to the House floor a resolution for legislation that would authorize the lawsuit in July – the final month of Cantor’s majority leadership. Boehner’s also suddenly reversed his long-standing support for the Export-Import Bank to align with McCarthy’s new tea party position. They may not have been able to elect one of their own as majority leader but the tea party has the next best thing and a very loud, persistent voice. It is very likely that Boehner’s latest announcement is an effort to appease them while offering a farewell gift of appeasement to Cantor. But it places him in a precarious position. As Sir Winston Churchill said: “An appeaser is one who feeds a crocodile, hoping it will eat him last.”

Further complicating the situation for Boehner is the question whether or not he has standing to sue the President. I consulted the Cornell Law Department website and found:

Member or legislator standing has been severely curtailed, although not quite abolished, in Raines v. Bird. Several members… alleging standing based on the theory that the statute adversely affected their constitutionally prescribed lawmaking power. Emphasizing its use of standing doctrine to maintain separation-of-powers principles, the Court adhered to its holdings that, in order to possess the requisite standing, a person must establish that he has a “personal stake” in the dispute and that the alleged injury suffered is particularized as to him. Neither requirement, the Court held, was met by these legislators. First, the members did not suffer a particularized loss that distinguished them from their colleagues or from Congress as an entity. Second, the Members did not claim that they had deprived of anything to which they were personally entitled.

The loss of political power, as opposed to the loss of a private right, was not deemed by the Court to be injurious and in light of that ruling it is hard to see how Boehner and the Members who support his proposed resolution could have standing.

What is certain is that it will not be unanimous. House Minority Leader Nancy Pelosi has already stated that she will vote against a legal challenge to Obama’s powers, noting:

“He hasn’t come anywhere near what Republican presidents have done on executive orders. I make of it as subterfuge – as I’ve said they are doing nothing here and so they have to give some aura of activity.”

It is highly probable that every House Democrat will follow her lead and quite possibly a handful of Republicans as well. In that case, even if Boehner gets a majority vote on his resolution, he cannot claim in a court filing to be representing the House; such a lawsuit would necessarily have to be restricted to only those partisan Members who support the intent to sue. That places the lawsuit exactly in the Raines v. Bird situation, a case which spectacularly failed.

When this lawsuit also fails, the tea party caucus are going to be very upset – and angry. They will see this lawsuit as an attempt by Boehner to lead them up the political garden path and away from impeachment which is what they really want and what Boehner is peddling hard to avoid. “This is not about impeachment,” he said in his press conference.

For Cantor, the tea party and all those involved in the plot to sabotage Obama’s presidency, impeachment is the objective. From the Washington Post’s Speaker Boehner’s Obama impeachment dress rehearsal:

Michael Grunwald’s book, released in August 2012, added new information that extends the timeline of Republican recalcitrance. The Post’s Greg Sargent found the ah-ha paragraphs on page 207.

Biden says that during the transition, he was warned not to expect any cooperation on many votes. “I spoke to seven different Republican Senators, who said, `Joe, I’m not going to be able to help you on anything,’ he recalls. His informants said McConnell had demanded unified resistance. “The way it was characterized to me was: `For the next two years, we can’t let you succeed in anything. That’s our ticket to coming back,’” Biden says.

The vice president says he hasn’t even told Obama who his sources were, but Bob Bennett of Utah and Arlen Specter of Pennsylvania both confirmed they had conversations with Biden along these lines.

The plan all along has been to crash the Obama agenda and then climb on top of the wreckage and seize power. Not only are Republicans complicit in the “failures” they rail against, but they are also the reason the president has had to resort to executive action to get some things done.

It is the President’s effective solutions to their obstructionism and attempts to annihilate his agenda that has led to their increased frustration, anger and obsession disorder. The question has now become when will they impeach rather than if they will impeach and Boehner, unwittingly or knowingly, has put it in play.