On Wednesday, House Speaker John Boehner told reporters he was suing President Barack Obama over the President’s alleged abuse of executive power. But how much of Boehner’s action is symbolic, or a real threat?
We’ve delved into this topic several times in recent months, and just this week, Constitution Daily contributor Lyle Denniston made a very concise argument about how a lawsuit representing a political disagreement would face considerable obstacles.
“The courts can be jealous guardians of their notion of what the Constitution allows, or does not allow, in terms of judicial review. The resistance to resolving political disputes is quite deeply set,” Denniston said. “One might suggest that it would take an inter-branch controversy of monumental proportions to cause them to give up that reluctance. Is the feud over President Obama’s use of his White House powers of that dimension? That may well be debatable.”
As Denniston explains, there is an argument made by columnist George Will and others that Congress does have the power under the Constitution to define the jurisdiction of the federal courts. Within that power, Congress could just pass a law declaring that the House or some of the members of Congress has a right to sue the President over a legitimate inter-branch dispute.
He says the catch is that expanding the courts’ jurisdiction to hear political disputes would itself be a constitutional issue that the courts would have the authority to decide, under the “case or controversy” clause in Article III of the Constitution.
Boehner is believed to be working under a theory proposed by attorney David Rivkin and Elizabeth Price Foley, a professor of law at Florida International University College of Law, that gives Congress a path to a lawsuit using the Bipartisan Legal Advisory Group (BLAG).
Rivkin told the Roll Call website that the House would need to prove injury as an institution; to prove that as an institution, it has authorized the lawsuit, through a vote by BLAG; to prove that no other private plaintiff has standing to challenge; and that there are no political remedies available to Congress.
Back in March, House Republicans started the ball rolling on a bill to fast track civil lawsuits filed by Congress against President Obama for allegedly abusing his powers. The Enforce The Law Act, proposed by Representative Trey Gowdy, allowed the House or Senate to fast track for any civil lawsuit against the President if that President “failed to meet the requirement of Article II, section 3, clause 17, of the Constitution of the United States to take care that a law be faithfully executed.”
Republicans have been openly upset about President Obama’s enforcement of the Affordable Care Act (or Obamacare), his immigration policy, and his refusal to defend a federal ban on same-sex marriage. At the time, the White House said the bill exceeded constitutional limits, and alleged that Congress was trying to assign itself additional constitutional powers.
Past efforts to sue Presidents over political matters have usually hit dead ends.
In 1982, the Supreme Court ruled in Nixon v. Fitzgerald that a President is entitled to absolute immunity from liability for damages based on his official acts.
Justice Lewis Powell, writing for the majority in a 5-4 decision, said that this broad immunity was a function of the “President’s unique office, rooted in the constitutional tradition of separation of powers and supported by our history.”
Powell added that there were other ways to guard against alleged presidential misconduct, without a stream of lawsuits.
“A rule of absolute immunity for the President does not leave the Nation without sufficient protection against his misconduct. There remains the constitutional remedy of impeachment, as well as the deterrent effects of constant scrutiny by the press and vigilant oversight by Congress. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature.”
A later case, Clinton v. Jones, established that a President didn’t have immunity from a civil lawsuit regarding his or her conduct before and after holding office.
And in his footnotes in the Nixon v. Fitzgerald decision, Powell said the decision was about private lawsuits. “We need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States,” he said.
Back in 2011, 10 members of Congress did sue President Obama over his decision to use military force in Libya. According to a Congressional Research Service report from 2012, a reviewing federal district court dismissed the case on jurisdictional grounds due to lack of standing.
“While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law,” federal judge Reggie Walton said.
Judge Walton expressed dismay that the plaintiffs wanted “to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.”
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