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Mopshell On June - 30 - 2014


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.

41 Responses so far.

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  1. NWGuy says:

    “… 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.”

    My understanding of lawsuits is that there has be injury. I don’t see where Boehner nor the HOR has been injured by anything done by the POTUS. Suing because you don’t like what the other party is doing has no grounds.

    However, as alluded to above about the POTUS suing on behalf go the people, I’m sure that the lack of action on behalf of the HOR in performing their duty or just the fact that they are not meeting their job descriptions yet are still costing taxpayers, may be enough. Possibly, even the publicity of such a suit may have an effect.

  2. Kalima says:

    Hello Mopshell, and welcome to The Planet. Just wanted to thank you for an excellent first post and sincerely hope it will be one of many. You laid it out so simply that even a European like me can at least understand some of the mysterious workings of the U.S. government, which is often very dark and confusing.

    Thanks once again, it was a pleasure to read.

    • Mopshell says:

      Thank you for such a lovely, welcoming and encouraging comment! American politics can be very confusing, even more so when it’s so different to your home government. I empathize with you because I’m Australian. When looking at American politics, I have to break everything down into simple components and then put them together in a way I can understand. It seems that’s an approach that works for both of us. (◕‿◕)

  3. pinkpantheroz says:

    Excuse me if this is a simplistic, naive question, but can anyone tell me who the hell gave Boehner a mandate from the people to instigate a lawsuit against the POTUS? And who the hell will pay for it? Surely not We, the People. The President should make an Executive Order (hee hee) preventing funding for this load of shite. and make the Kochs pay for it!

    • Mopshell says:

      It’s neither simplistic nor naive and it’s a question that should be addressed (I’m sorry I didn’t include it in the above article!).

      Mandate from the people: Boehner and his fellow Republicans are assuming that, by virtue of being the majority in the House, this gives them the mandate to act on behalf of all those who voted for them. Add to this the fact that the tea partiers believe all real patriots are with them (“real” patriots in this instance being synonymous with “real” Americans, the only Americans they recognize as being legitimate) and you have their delusion of a mandate.

      Who will pay for it?: Taxpayers will be paying for it. I’m surprised I haven’t yet seen a petition which simply declares that, as a taxpayer, the signees object to their taxes being used in this way. The President’s powers do not extend to determining who can pay for this and, even if they did, he would not use them because it would be seen as a gag order. I think he’s quite happy for this to go ahead because their chances of proving standing are slim to none and the public at large are likely to side with him as they did when Clinton was impeached.

      • pinkpantheroz says:

        Thank you, Mop, for your explanation, and your kind words. I’m fed up with all these distractions for POTUS. There’s enough mayhem happening around the world and internally in the US. How these mopes have a job any more is beyond me. Order the Pitchforks!

  4. MurphTheSurf3 says:

    Nice overview…the politics, the law, issues of governance all doing some crazy tango.

    Here are the big points that stand out for me:

    Boehner has one goal- keep his speakership. He does whatever he has to do to accomplish this. So, believing that impeachment, which the Tea Party dearly wants, would do to him what it did to Newt Gingrich- ruin him…he has come up with this little bauble, a lawsuit, to focus their attention.

    The lawsuit gambit will also give the appearance of a House doing something- stopping a tyrannical president- to counter the current impression of a Congress of no good, do nothings.

    Now—- as to suit…standing is an issue but there is another….Can the House act without the Senate…Bills are not passed into law/resolution/action by just one House. Both must concur AND the President must sign the approved action. OH boy….how the hell is that going to work?

    It is not. The Constitution has ONE remedy for those who do as the House says that Obama is doing…..impeachment….and that is NOT something Boehner wants his name attached too.

    • TParrish says:

      Hi MurphTheSurf3,
      Of course, Boehner doesn’t have to actually file a lawsuit. He just has to say he plans to do so, and the tea party contingent, as unaware that he cannot do so as they are of almost everything that can and cannot be done in our government)will take it up as a rallying cry. The lack of a lawsuit will be spun as a gigantic liberal conspiracy to quash their rights, and proof that Obama is coming for their guns.

      The conservatives have elected morons.

      • MurphTheSurf3 says:

        The TP contingent operates in a bubble wherein the State Based Articles of Confederation were never replaced by a Federal Constitution. In that world any federal action is suspect. They will not question that which is at the heart of their political philosophy. Where Boehner is dead wrong is believing that the threat of lawsuit will be sufficient red eat to keep the TP satiated…not even close.

    • Mopshell says:

      Unlike the passage of legislation, filing a lawsuit need not involve the Senate. Boehner is proposing that the House be the plaintiffs in this action and would therefore see no need to defend their obstructionism -- it is up to the defendant to defend. Boehner (or more accurately, the House Republicans pushing for this) is wrong of course; if the suit ever did get standing (and that’s highly improbable) the issue of obstructionism would come up.

      You’re absolutely right in saying that the Constitution has one remedy and one remedy only: impeachment. Boehner definitely does NOT want that attached to his name! To deflect them, Boehner has come up with this bauble (perfect word!) and we all know how tea partiers love shiny things! If they actually stopped and thought for 10 seconds, they’d realize that this is a ploy to distract them but they’re not known for being smart.

      However, I don’t think it is so much because Boehner wants to keep the job of Speaker -- at least, not beyond this current session -- but because he does not want to conclude his Speakership with this almighty pile of stinky manure on his record. I think Boehner has had about enough of the tea partiers. It must be enormously stressful trying to keep them from running amok and I think he’s reached the end of his tether. He’s already said he’s unlikely to complete a full term if re-elected and may not seek the Speakership again. That’s a very serious statement and I don’t think he made it lightly. There’s plenty of evidence to show he’s speaking the truth this time.

      • MurphTheSurf3 says:

        I can find no source, no precedent that demonstrates that the House can sue the President.

        Further, a number of sources I have read argue that the legislative branch has no power to sue anyone.

        What Congress is empowered to do per the Constitution:

        -- to legislate
        -- to investigate
        -- to oversee
        -- to resolve
        -- to declare ware
        -- to impeach

        Further, Constitutional scholars in general say that the branches cannot sue each other at all. This is thick going and a bit old but still often cited: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1941&context=wmlr

        It’s basic position is that the federal government is generally understood to be a single corporate person and cannot sue itself. The only workable exceptions have been in matters involving inter-agency conflict over the application of legislation and in these cases the courts have sent the matter back to reconciliation.

        • Mopshell says:

          My research is coming up with exactly the same conclusions. (Thank you for the link!) I just recently read that the Executive branch has sovereign immunity which covers all official actions taken while in office. This link:
          http://www.slate.com/articles/news_and_politics/explainer/2011/06/can_you_sue_the_president.html mentions several attempts to sue presidents from JFK to Obama (2011 -- case dismissed for lack of standing).

          It’s obvious from these examples that the president can’t actually be sued for any action he takes as part of his job as chief executive. The reasoning here, as solidified by the 1982 Supreme Court decision in Nixon v. Fitzgerald, is that “subjecting the president, who routinely makes decisions that alter the fortunes of millions of citizens, to such lawsuits would cripple his ability to preside effectively and distract him from the job.”

          The president can, however, be sued for personal actions made outside of his job (as in the cases of JFK and Clinton) but that isn’t the case here.

          As your link detailed, inter-agency cases have gone to court but never an inter-branch case as that would be like the government suing itself. In this instance it wouldn’t be the whole Legislative branch, nor even the whole House and past cases involving only some members have never been able to prove standing.

          Bachmann, who seems to have taken on the role of spokesman for this current proposed action and who’s talked about suing the President since last year at least, has a “Law degree” -- I put this in quotation marks because her “degree” was from the now-defunct Oral Roberts University which taught law as it pertained to the Bible. That she is clueless about real law is hardly surprising -- she’s clueless about most things!

          • MurphTheSurf3 says:

            Now, here is the tricky part….all of the case law you cite is only as binding as the current SCOTUS decides….yep, the Conservatives i.e. Reactionaries could dismiss it all BUT in your interpretation is the one that arises out of previous case law.

            • Mopshell says:

              If I’m brutally honest with myself, I have to say that’s true. Like too many others, I keep expecting SCOTUS to do the right thing even though, time and time again, they disappoint us. My real fear is that this SCOTUS will ignore all case law and the Constitution and let Boehner & co go ahead. They didn’t when a case was brought against Obama in 2011 so I’m clinging to that recent history. My other slim hope is that, because Boehner doesn’t want this to go ahead, he can somehow slow it down or even sabotage it some way.

  5. PollyTics says:

    Might we be able to sue Boehner for stupidity?

    • Mopshell says:

      Unfortunately I fear that that is near impossible. Elected members are safe-guarded from lawsuits. Anyone suing them would not be able to use their voting record or anything said in the House. Anyone planning to sue must also show standing, that they are materially harmed by Republican members’ actions and, without access to any official records, that might be impossible to do.

      Ironically, the best thing to do might well be pushing them to impeach or shut down the government. Both actions have been shown to cause an enormous backlash in public opinion which would translate at the ballot box into many lost Republican seats. How to get them to do that though I’m not sure. I welcome a conversation about it though!

    • monicaangela says:

      If we started with Boehner, the court dockets would be filled for years to come, why? Just think about it, Boehner is the leader of the Republicn part in the House, the speaker of the House how long would it take to sue those who are considered lesser than Boehner, years, decades..l wonder….

  6. sillylittleme says:

    The President should countersue on behalf of the American people. After all, the House hasn’t done a bit of work. As part of the suit he should demand that they pay back their salaries and benefits that the taxpayers have given them. They have not earned them.

    • Nirek says:

      SLM, I second that motion!

      • jjgravitas says:

        Hear hear! If anyone should be sued it should be the House of Reps. But I don’t see how any court would listen to this suit. Over executive orders? All presidents do them and nearly all of them have done more executive orders than Pres. Obama has, so there is nothing to argue here. Boner should start packing his bags.

        • Mopshell says:

          I think Boehner is very much on the verge of leaving them to it. He’s a very unhappy little Speaker who is desperately trying to stem the rising tide of “Impeach!” from the tea partiers before he has a chance to depart. I think it’s highly unlikely that he will stand again for the Speakership and will retire before his next term is completed.

  7. James Michael Brodie says:

    Amazing. If the GOP succeeds in getting rid of Obama, I see two possible outcomes:

    1. People become disenchanted (primarily the young and people of color) and walk away. This is what the GOP is hoping for — to send a message to the “others” that are not welcome or wanted.

    2. Those same folks will become very angry over what they will perceive as a political lynching of Obama and take out their anger at the polls, wiping away those who brought Obama down.

    My one wish back in 2008 was that Barack Hussein Obama survived his four or eight years in the White House and not leave behind a widow and two fatherless daughters. That is still part of my prayer.

    But even I could not imagine the kind of animosity this man was going to face that has had less to do with his policies and more to do with his identity. A trip over to Yahoo News will confirm that this is not about a few passed laws or executive orders; rather about a large part of our nation that cannot stand that this man has been elected. Twice.

    I recall talking with my father and my uncle the night of Obama’s first win. Both had worn the uniform — my father a 29-year Air Force “lifer” and my uncle a medic in Vietnam. The sense of pride that they felt at seeing a Black man rise to a position they could not even have dreamt of was inspring. For them, it validated the sacrifices they made on behalf of the country they loved.

    Today, both men feel a sense of betrayal that my words cannot capture. They fought for an ideal that seems further and further from their grasp.

    • MurphTheSurf3 says:

      Conviction in the Senate requires 2/3 vote….no way that can happen so it is stunt.

    • Mopshell says:

      I don’t think there’s any chance that the GOP will get rid of Obama. If they did, they’d then have to go after Joe Biden too so the Speaker of the House becomes the de facto president. Since that would result in a nationwide backlash of a size never seen before, it would cause absolute chaos.

      The barriers to their successfully suing the President are monumental (and I believe Boehner knows this). They’d have to first prove standing which is next to impossible. If they actually managed to get over that hurdle, I believe John Boehner would retire so the whole enterprise would be left in the hands of someone not equal to the task and they’d botch it. What’s more, it would drag through the courts until Obama’s term was over at which point it would be dropped because there’d be no point to it any more.

      There’s a slim chance that the tea partiers might put up the interminable delays but it’s far more likely that they would get impatient and go straight for impeachment instead. That would inevitably fail in the Senate and the backlash to the Republicans politically would consign them to political wilderness for years to come.

    • sillylittleme says:

      I’m not much for prayer, but I do pray every day for that man’s safety. Although in truth he is safe because no way do they want Biden stepping in.

    • Nirek says:

      Jim, I echo your prayer that President Obama completes his eight years and his wife and he have a wonderful life after his term. That his children enjoy their Dad for many years. I think he has done a decent job under difficult circumstances. Meeting obstruction head on.
      Peace, my friend.

      • James Michael Brodie says:

        I think history will regard him more kindly than the present, Nirek. I can’t help but wonder if he has any regrets about pursuing this job…

        • Nirek says:

          James, do you like Jim or James?
          I agree that President Obama will be seen in the history books as a great President. While his predecessor will be seen as the worst!

          • James Michael Brodie says:

            Actually, my friends either call me Michael or Brodie.

            James is every other male in the family -- my father, his father, his father, some uncles, a few cousins…

            • James Michael Brodie says:

              Thank you, Nirek. I feel the same way, my friend… :-)

            • Nirek says:

              Brodie, if you don’t mind I’ll call you Brodie. I feel like we are friends. We sure think a lot alike.

  8. phoenixdoglover says:

    Yes, this lawsuit seems to be a recently concocted and somewhat harebrained stalling tactic. As you suggest , perhaps just a prelude to a run at impeachment. In the political context, I see the timing as all-important. It’s too late in 2014 for impeachment; the crescendo needs to come at the right time in 2016 to taint the Democratic party candidates with guilt by association.

    I don’t know how the GOP could be any more cynical -- but when the agenda is destruction, there are so many paths to follow.

    • Mopshell says:

      I don’t think the tea party faction is bothered by issues of timing; they are driven by their beliefs which includes the belief that America is with them. As far as they are concerned, impeachment is long overdue and, if suing the President doesn’t work for them, they’ll push for impeachment immediately -- they really are that crazy. If Boehner throws in the towel early next year (as I believe he will), or loses control over them any time before November, the tea partiers will run amok. I hope that does happen before the midterms because it will have a bigger impact on the elections than anything else possibly could.

      • Nirek says:

        Mop, I do not believe the teapotties have any kind of beliefs. They just want to take America down. That is just my gut feeling.

        • Mopshell says:

          I think there’s more than one kind of tea partier. Those who want to take America down are headed by Ted Cruz who would dearly love to ruin the country so he could climb up on the wreckage and take over as dictator. He’s dangerous and more than enough to justify your gut feeling.

      • phoenixdoglover says:

        Yes, the Tea Partiers are certainly impatient. There might be good reason for that. So many of the Tea Party politicians are steeped in the Evangelical Christian approach, which plays out at the Church and community level all the time:

        1) Firmly holding (fundamental) beliefs in the face of contrary evidence
        2) Heedless of others outside the fold (everybody else)
        3) Pressing forward, hectoring others with apocalyptic rhetoric
        4) Welcoming destruction; a harbinger of resurrection (true believers will be saved).
        5) Anticipating and rejoicing in rejection; as proof of righteousness
        6) Welcoming banishment; recreating Exodus and receiving special (self rewarded) status as the chosen ones
        7) Returning from exile to complete the cycle and start anew.

        • monicaangela says:

          They have a bigger fear than anything you have mentioned…..The 2050 Census. :)

          • James Michael Brodie says:

            True, Monica. The numbers are changing. And whether it happens today or 20 years from now, change is going to come. It does bother me, though, that Mr. Obama could end up as a casualty in this change…

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