John Boehner is pursuing a lawsuit against President Barack Obama for abuse of power – even as the move faces long odds and may backfire with voters.
Boehner and House Republicans are on track to introduce a resolution as soon as this week to sue the president, saying he failed to enforce, waived, or ignored laws dozens of times in health-care, energy and foreign-policy decisions.
Legal scholars say Republicans will have to clear a high hurdle to get the judiciary to rule on whether the executive branch abused its authority. In addition, the U.S. Supreme Court has dealt blows to past Republican efforts to challenge the Obama administration’s health-care law and its steps to extend legal benefits to same-sex couples.
Boehner is forging ahead in part to quell Tea Party members of his caucus – some of whom want to impeach Obama – and show he can be tough on the president without risking the political damage that trying to oust him from office might cause.
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The legislative body already is held in low esteem, though, and a legally questionable suit targeting the administration could further alienate the public. Only 7 percent of Americans expressed confidence in Congress in a June Gallup poll, a historic low for the institution.
Voters “would see this as the ultimate in Washington silliness,” said Dante Scala, a political science professor at the University of New Hampshire.
Obama made a scoffing reference to the threatened suit today during a speech in Austin, Texas.
“You’re going to sue me for doing my job?” the president said, adding that Republicans want to use taxpayer money to sue him “while you’re not doing your job.”
Yesterday, he also mentioned the planned lawsuit in discussing his private meeting with Gov. Rick Perry of Texas on the migrant children flocking to the U.S. border.
Perry, a Republican who has harshly criticized the administration’s immigration policies, suggested to him that “maybe you just need to go ahead and act,” Obama said in Dallas. “I had to remind him I’m getting sued right now by Mr. Boehner, apparently, for going ahead and acting instead of going through Congress.”
The brewing legal fight comes after setbacks for House Republicans on the judicial front. They spent $2.3 million to defend a law denying federal marriage benefits to same-sex couples because the administration wouldn’t do so – and lost in a 2013 U.S. Supreme Court decision.
House Republicans are being advised in the Obama showdown by some of the same lawyers who orchestrated the legal fight to declare unconstitutional the Affordable Care Act. That effort failed, with the Supreme Court upholding it in 2012.
“Courts have said over the past 40 years that members of Congress don’t have the standing to sue if they can solve their problems with a majority,” said Jasmine Farrier, a professor at the University of Louisville who studies Congress and the courts.
Boehner’s efforts may keep his caucus’s Tea Party wing from trying more extreme measures. Representative Steve Stockman, a Texas Republican aligned with the small-government movement, in October sent colleagues a book about impeachment and said he hoped it would persuade them “to hold Barack Obama legally responsible for his disregard for the law.”
Sarah Palin, the 2008 Republican vice presidential nominee, said July 8 the House should move to impeach Obama instead of suing him. Boehner, asked about her comments, said he disagreed.
To proceed with its suit, the House must vote on a resolution authorizing the legal action, which won’t need Senate approval and would immediately take effect upon passage.
Republicans are leaning toward introducing the resolution this week, according to two party aides familiar with the plans. The text hasn’t been finalized.
Boehner, an Ohio Republican, plans a hearing on the resolution in the Rules Committee next week, with a final vote by July’s end, the aides said.
“The legislative branch has an obligation to defend the rights and responsibilities of the American people, and America’s constitutional balance of powers – before it is too late,” Boehner wrote July 6 in an opinion piece for CNN.
Congressional lawsuits brought by lawmakers against an administration generally have been unsuccessful. So Boehner’s team is advancing a fresh argument, saying the institution of Congress is harmed by the president failing to follow the law.
“What we have seen clearly over the last five years is an effort to erode the power of the legislative branch,” Boehner told reporters. “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.”
Obama has dismissed the effort as a “stunt.”
Republicans say a chief way that Obama has sought to get around Congress is by issuing executive orders to waive parts of laws they’ve passed.
As of June 20, Obama has signed 182 executive orders. He is on pace to have the fewest number of executive orders per year of a presidency – about 34 on average – since the late 1880s.
Obama’s predecessor, President George W. Bush, issued 291 executive orders in his two terms, according to the American Presidency Project at the University of California Santa Barbara, which tracks executive actions.
President Bill Clinton issued 364 such orders, and President Ronald Reagan had 381.
Though Boehner announced the planned lawsuit two weeks ago, Republicans have been laying the groundwork for legal action since at least January.
House lawmakers have been consulting with David Rivkin, a partner at Baker & Hostetler LLP in Washington and a former attorney in George H.W. Bush’s administration, and Elizabeth Price Foley, a constitutional law professor at Florida International University in Miami.
Both were involved in Republican attempts to overturn the individual mandate at the core of the 2010 health-care law. Rivkin helped craft the legal strategy for and represented states arguing Obamacare was unconstitutional, while Foley wrote the Institute of Justice’s amicus brief against the law.
“Professor Foley and I believe that there are numerous instances where President Obama has not only suspended portions of congressional statutes, but has also replaced the relevant statutory language with a new language that was drafted solely by the executive branch,” Rivkin said.
The resolution to authorize legal action, which hasn’t been released, would empower the chamber’s general counsel and an obscure five-member panel called the Bipartisan Legal Advisory Group to sue the administration.
While the measure may spell out what actions will be cited in the lawsuit, Boehner could also defer and let the panel he controls – which consists of the top three House Republicans and two senior Democrats – determine the specifics later.
Among the options being considered are the administration’s waivers delaying compliance with parts of the health-care law and directives to ease enforcement of federal laws against marijuana usage and possession in states where recreational or medical pot is legal.
In the lawsuit, Republicans first will have to prove that they are directly harmed and have the legal ability to sue, known as “standing.” Next, they’d have to win on merits.
Standing is a question that faces a “high barrier” to prove, said Farrier at the University of Louisville, who is working on a book about congressional suits against the executive branch.
“The Congress has free will to put the president in a corner, and they just haven’t done much,” Farrier said.
For instance, Congress hasn’t passed laws specifically directing Obama to implement existing laws a certain way, she said.
Administrations also have some leeway in implementing laws. “It’s not some robotic function,” Farrier said. “It’s built in with institutional and legal discretion in how they do things.”
“This blatant usurpation of legislative authority by the president is the most palpable injury to the House of Representatives as an institution and would amply satisfy the constitutional requirement of an injury-in-fact, necessary to establish standing,” Rivkin said in an e-mail.
A study by Congress’s non-partisan research arm, the Congressional Research Service, showed that individual lawmakers have had difficulty winning arguments about standing, while institutions – committees or an entire chamber – have more luck when seeking judicial enforcement of subpoenas.
“It appears that more successful suits could be brought by either Congress as a whole, a house of Congress, or a committee when acting with the authorization of one or both houses,” CRS wrote in a 2012 report.
One example the research service gave was a 1997 case in which six members of Congress – five Democrats and a Republican – sued the Clinton administration over a law, known as the line-item veto, allowing the president to undo sections of laws relating to spending or tax benefits. The Supreme Court said the individuals lacked standing to claim an institutional injury.
Rivkin said the House’s challenge would meet the court’s test in part because the chamber would be expressly authorized to sue as an institution.
House Democrats say Boehner’s suit is a waste of time and money designed as a distraction, with Congress on pace to pass fewer bills than in any other two-year cycle since World War II.
“It’s a subterfuge” Minority Leader Nancy Pelosi, a California Democrat, told reporters June 25. “Whatever the subject happens to be of the week, you can just go on the Internet and you can see what they’re screaming about there, you know there will be a reflection of it here.”