Wednesday, July 9, 2014

Boehner's Brilliant Lawsuit

by Jonathon Moseley

John Boehner’s plan, in which he proposes to sue President Barack Obama for violating the Constitutional role of the presidency, is important and brilliant. I am an attorney, with a keen interest in both politics and law. I have read and studied the U.S. Supreme Court precedents in question.

Pundits with incorrect analyses make three wrong objections: (1) Congress does not have legal “standing” to be the plaintiff to bring a successful lawsuit. (2) The Courts are reluctant to get involved in disputes between Congress and the Executive Branch. (3) Congress has other tools and Boehner is off-base using a lawsuit instead of direct powers of Congress.

Speaker of the U.S. House of Representatives John Boehner has announced that he will bring a resolution up for a vote to authorize a lawsuit by the U.S. House challenging recent presidential actions. It appears that this will authorize the House to act alone, and the resolution does not need the agreement of the Democrat-controlled U.S. Senate. 

Boehner has not given specific details of his plans yet. But that has not stopped pundits from slamming Boehner for his proposal.

First, it is true that a plaintiff in a lawsuit must have “standing” especially in the narrow requirements of Federal courts. That is, a plaintiff must have suffered an injury from the acts or omissions complained of which is more particular to the plaintiff than the general effect on society as a whole. Just because Congress passed a law does not give Congress the necessary “standing.”

But even the dumbest lawyer in America knows -- even a Speaker of the House -- can figure out, that all you have to do is add more plaintiffs to the lawsuit. Presumably, the lawyers assisting Boehner will search out people, business, or non-profit organizations that have been injured by each and every one of the president’s actions that the lawsuit challenges. Plaintiffs will be added who have standing. Problem solved.

Second, it is absolutely – wildly – false that Federal courts are reluctant to decide disputes between the U.S. Congress and the Executive branch. What the pundits are stumbling over is the “political question doctrine.”  But this involves the substance of the question, not the identity of the plaintiff and defendant.

Certain subjects do not lend themselves to judicial review, because they are “political questions.” This means that the U.S. Constitution clearly assigns the decision to one of the other Branches or there are no manageable standards that the Courts could apply other than raw political opinions.

For example, the U.S. Supreme Court slapped down presidential overreach by Democratic President Harry Truman in Sheet & Tube Co. et al. v. Sawyer, 343 U.S. 579 (1952). During the Korean War, Truman tried to seize steel factories to keep them running during a strike. Truman claimed the legal authority by greatly stretching and twisting the terms of the Tart-Hartley Act (concerning labor disputes) and asserting a military emergency as Commander in Chief to maintain production of critical munitions. Truman confidently predicted that the U.S. Supreme Court would agree with him, since earlier Truman had seized 28 other industrial properties and gotten away with it. The U.S. Supreme Court ruled that the president had exceeded his authority under the Constitution, particularly because Congress disagreed with his actions.

In Powell v McCormack, 395 U.S. 486 (1969), the Court rejected a claim that the case ought to be dismissed as a political question. The case involved the refusal of the House of Representatives to seat Adam Clayton Powell. The Court concluded that the decision was not committed by the Constitution to the House. Since the refusal to seat Powell was based on acts prior to Powell’s election, the Court ordered Powell seated in Congress.

Another good example is INS v. Chadha, 462 U.S. 919 (1983), finding a legislative veto of Executive branch action unconstitutional. Congress was passing laws which specifically enabled Congress to veto any regulation created under that law. The U.S. Supreme Court found this violated the structure or architecture of the Constitutional system. 

Laws go to the president for signature or veto. Congress cannot reach over and pull a law back. Congress must pass a new law and present it to the president for signature if dissatisfied with how the law is working out. The U.S. Supreme Court had no hesitation finding that the Congress had overreached, based only on the implied architecture of the Constitution.

Speaker Boehner proposes to challenge the legality of President Obama’s actions as being outside the authority of the president. Courts do that -- testing whether an action exceeds legal authority -- “all day long and twice on Sundays.”  Whether or not Obama’s executive orders are legally valid is not under the “political question doctrine.”

Now, Obama’s followers are chanting that past presidents issued a greater number of executive orders than Obama has. Quite obviously, it isn’t the number of executive orders that is the problem, but the nature of them. Obama’s executive orders are fundamentally different from most of those we have seen pre-Obama.

What is an executive order? The president is the head of the Executive branch. As the boss of people working in Federal dDepartments and agencies, the boss can issue orders to his employees. But the president cannot create law or modify laws.

There are two types of legitimate pre-Obama executive orders: 

(a) A law passed by Congress specifically delegates the power to the president to decide something. For example, if a law empowers and requires the president to certify whether a nation is aiding terrorism, the president may exercise that legal authority in the form of an executive order. But the authority is created by the law Congress enacted.
(b) The boss issues an order to those who work under him: Thursday will be national watermelon day. Employees should not drink coffee near their computers. IRS employees shall make back-up copies of emails. Keep your hands off the interns. That sort of thing.

But Boehner’s lawsuit seeks to challenge Obama’s executive orders which fundamentally conflict with laws passed by Congress. Whether an executive order is legally valid is something courts will have no hesitation deciding.

Finally, those who have been tearing their hair out because Boehner has been passive now attack the speaker for not taking more aggressive action like impeachment or defunding government agencies. They argue that the courts will not hear Boehner’s lawsuit because Congress has other powers to use against the president.  When the speaker shows signs of life, it seems wrong to attack him.

It makes no sense to demand the drastic step of impeachment, which is highly unlikely to succeed. Furthermore, a Supreme Court precedent would be binding on future presidents. Impeaching one president would not prevent the next president from the same violation.

In theory, Congress can respond to abuse by the Executive branch by reducing or eliminating particular appropriations to the Executive branch. Federal courts mention this. However, that is a dangerous fantasy.   

Cutting appropriations punishes innocent citizens who are the intended beneficiaries – often people in need. Under current law, the offending bureaucrats can’t be fired and continue to get paid. So the Congress is put in the position of hurting innocent third parties in order to curb abuses by the Executive branch.

The modern practice of massive bundles of spending in a single appropriations bill makes it nearly impossible for the Congress to exercise the spending power effectively. A threatened presidential veto turns any attempt to withhold Federal spending into a now-familiar all-or-nothing government shutdown crisis.

Jonathon Moseley


Copyright - Original materials copyright (c) by the authors.

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