Government Watch

Top Ten Myths About the House’s Suit Against Obama

from – National Review – by Todd Gaziano

The House is set to vote this week on H.Res. 676, which would authorize the chamber to file a lawsuit against President Obama for his failure to faithfully execute the laws as the Constitution commands. Such a suit raises many interesting legal issues, but there also are many silly arguments against the proposal that should be promptly dismissed.

Whether the House would have standing to bring such a suit in federal court is one of the serious issues, even if some unqualified statements against standing fall into the silly category. But, as many others have acknowledged, the desire to stop abuses of executive power is compelling.

The red herrings and myths about the proposed lawsuit outnumber the legitimate issues with it:

Myth 1: The political branches can never sue each other. The federal courts have enforced various subpoenas by a house of Congress against the executive branch, especially when it is clear that the suit is authorized by the entire branch. The famous ruling against President Nixon for the production of his Oval Office tapes was initiated by a grand jury, but the court stated that Congress might also compel a president to produce records in certain circumstances, even if the president has invoked executive privilege. The courts should not get involved in the substance of a policy dispute, but “saying what the law is” sometimes includes enforcing the separation of powers by drawing lines between the branches and declaring that, yes, the president does have the authority to do X or he does not. The interesting question is what kinds of cases the courts will and will not hear, not whether they will hear any at all.

Myth 2: The Supreme Court held in Raines v. Byrd (1997) that Congress can’t challenge the execution of a law. Although the Court held that several members of Congress did not have standing to contest the constitutionality of the line-item-veto law at issue, the Court explained that three factors influenced its decision in that case, none of which would apply to the contemplated House suit: The suit by a handful of members (“sore losers”) was disfavored; the challenged provision had not yet been exercised, which made the suit hypothetical; and there likely would be private citizens who could (and did) bring a similar challenge when the veto was invoked. It would have been so much simpler for the Court to write that a legislature can never sue to enforce its powers if that were so, but the Court has never said that. Indeed, the High Court held in Coleman v. Miller (1939) that amajority of state senators may challenge an action by the state’s lieutenant governor, who they alleged invalidated their votes, in federal court.

Myth 3: The House has various political checks it can use against the president, and thus, it is improper to involve the courts in a dispute with the president. The second part just doesn’t follow from the first. Private citizens also have political checks against elected officials, including recall in some situations, mass protests, scathing criticism, and throwing the bums out in the next election, but they can also sue an executive official when they have an injury that a court can redress. Lawsuits are not always the most effective option, but an “all of the above” strategy may be the most prudent course to vindicate vital liberties. And in any event, the courts aren’t open just when the lawsuit is “more effective” than political options. Judges should decide whatever suits they have jurisdiction to hear. Wrongly invoking the “political question” doctrine to decline hearing a case is itself a political act, which the courts must avoid.

Myth 4: The House should use its power of the purse, which is supreme, and not defer to the courts, which often get things wrong. There is no reason the House can’t continue to pursue any of its budget or other political checks on the executive and still file a lawsuit on the violation of an existing law, and it needn’t ever yield on its appropriations authority, regardless of how the courts rule in the proposed “suspension” lawsuit. The courts are less likely to hear the challenge under the “prudential standing” doctrine if they think that the House could secure the same result unilaterally or that it was neglecting its own powers generally. So it would be a serious mistake for the House to signal that it is putting all its eggs in the judicial basket, but that clearly isn’t necessary. Some have argued the House would have more success if it used its appropriations power more creatively given the current media and political climate, but there is nothing preventing it from doing so if it files a discrete lawsuit on a particular suspension of law.

Myth 5: The House should not be distracted from impeaching either the president or lower-branch officials who are obstructing justice or acting unconstitutionally. If H.Res. 676 passes, the lawsuit would have no discernible impact on the ability (or advisability) of any House impeachment action. A targeted suit to compel the president to enforce a particular law or meet a specific statutory deadline addresses a constitutional violation that probably is not a “high crime or misdemeanor.” But either way, the lawsuit does not tie the House’s hands on impeachment.

Myth 6: It’s useless to sue the president, since he won’t follow any court orders if he loses. Like most presidents, Obama tries to appeal and sidestep legal rulings he doesn’t like, but there is no case in which he completely refused to follow a Supreme Court ruling he lost (and there have been many losses). Two years ago, the Supreme Court struck down an important part of the Obamacare law, which would have mandated that all states accept the Medicaid expansion or lose all federal funding. The vote on that holding was 5–4 and caused much liberal angst and wailing, but it was followed. Two other points: 1) If the president would ignore a direct and final court order, why would he accept a funding limitation or other political check? 2) A final court order, even if ignored for a time, would still be powerful — more powerful than another bill or even a law passed over his veto that is subject to further presidential “discretion” or “interpretation.”

Myth 7: The courts can’t order a president to do something or to meet a statutory deadline. The lawyers acting on behalf of the House will know to add relevant officials who can be enjoined by a court. As for the type of claim being discussed, federal courts frequently hear claims against the executive branch for not doing something the law requires or failing to meet a statutory deadline. There is often a question of whether the statutory deadline is flexible or whether the executive’s excuse for not acting is “reasonable,” but there is an established body of law on such issues. These questions go to the merits of such lawsuits and are matters commonly addressed by courts. There is nothing out of the ordinary in the type of litigation proposed by H.Res. 676, which is designed to vindicate important constitutional and statutory rights.

Myth 8: It’s a huge waste of money since the suit is just a political stunt. The amount of money involved is infinitesimal compared with the economic impacts of the Obamacare law at issue or the value of constitutional government generally. The legal expenses will probably be less than one thousandth of the legislative-branch appropriation, which total is less than one thousandth of what executive-branch agencies spend. As for whether the proposed lawsuit is a “political stunt,” that is more of an epithet than an analytical term. That same term could be used for any action (or any repeal bill) that is unlikely to be adopted by the U.S. Senate and signed into law. The odds of the proposed lawsuit’s prevailing are far from assured, but they may still be worth pursuing given that no other strategy is guaranteed either.

Myth 9: The GOP House leadership is being hypocritical and will regret any precedent it sets when a GOP president occupies the White House. Hypocritical posturing is a bipartisan practice, but on this issue, Kim Strassel has shown it is a more apt criticism for certain liberals, including House minority leader Nancy Pelosi, who have filed much less meritorious suits against a president in the past. In any event, legislators should care about their institutional powers at least as much as their political position. Any successful lawsuit will set a precedent, and it should. That is exactly how James Madison explained the separation of powers would promote the liberty of the people: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place [his branch of government].” And the liberty of the people is advanced when a Congress controlled by either party reasonably uses any option to cabin an abuse of presidential power, no matter what the president’s party.

Myth 10: President Obama issued far fewer executive orders than did other presidents, which proves he has not abused his executive authority. A president can abuse his powers in many ways other than issuing formal executive orders, and the number of such actions is much less important than the scope and nature of those that are illegal. It was a serious abuse for Richard Nixon, and perhaps one other president, to provide any form of encouragement or tacit approval to appointees in the IRS to give special scrutiny to his political “enemies.”

— Todd Gaziano is the executive director of Pacific Legal Foundation’s Washington, D.C., center and its senior fellow in constitutional law.

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Wayne Guthrie

The lawsuit is silly, a waste of time and money. It’s a political stunt that just muddies the water.
Our Constitution gave the House of Representatives impeachment power at its inception, if we want Obummer out, and we do, use the impeachment powers but make darn certain that the facts you use are strong enough and correct enough to stand up to some of the smartest Lawyers in America.

peter

My parents and I are immigrants. At the time of our arrival, my parents had to prove they could support themselves and would not require government services. My parents struggled and were never a burden on this country. For that matter, Mr. Friedman recommended the United States have open border but zero government services. Under such rules, each and everyone must be self-sufficient. Such conditions create the best kind country where most everyone thrives. What has happened?

My suggestion is for all of those folks our Federal Government allow in and who cannot be self-suffient, shall be assigned to those politicians and their supporters who believe these actions are a good idea.

dcksjk

AR-15

grannygrits

Don’t ever let a bull loose in a china shop……

Sally Isenberg

The other day I heard OBUMMER has bought a house in Calif. You know what that means? Mrs. Obummer is gonna run in Calif. I think what Repubs need to do is get someone who can WIN in 2016. he or she needs to campaign their butt off and start ASAP. There is no way that he’s going to get impeached. You’re not going to get 12 Dems. to vote against him. They’re too busy kissing his posterior. And stop with the birther thing. You only need one parent born in the USA for the kid to be a citizen. It’s a useless argument. I’m just as sick as you are about this jerk. Whenever he comes on the air to make a speech, I turn it off. I know all he’s going to do is tell more lies and feed us more rhetoric and besides that, he’s boring. I… Read more »

Lori

Is there no way for the people to directly hold this lawless president accountable? Why must we rely on equally lawless members of Congress to bring suit against him on our behalf? I’m sure there are any number of people who could claim intentional infliction of emotional pain and suffering, if not actual physical harm, caused by this president’s actions.

Lise

Before Obozo got elected, I was certain that this person what planted years ago and programmed to ruin the USA.

The first interview with Obozo and madame Obozo (before he was even elected) convinced me that they are anti-American. Especially the madame. I hope the Americans have finally realized that their white guilt vote has ruined our country and polarized it more than ever in history. I have witnessed so much reverse discrimination working in government myself, it is baffling. The race card has gone to far this time.

A LEGAL immigrant and LOYAL American who does not rely on race for equality. This American believes in ethics and values.

God help our Country!

Disruptive Element

Welcome to communism warmed over.

Pamela headley

President Obama is a habitual liar and probably does not know hoe to tell the truth. His birth certificate that he waved around had so many photo shop coverups they are hard to count. I met a lady who lived in hawaii where obama was supposedly born and she said the hospital listed on the fake birth certificate was not the name of the hospital at the time he was born. He is a fraud and definitely not an American. What American would watch fellow americans being slaughtered by terrorists on satellite, go to bed, then get up the next day and lie about it to the american people and have miss hillary lie about it also. but the most horrible part of it all is neither one of them tried to help them even after all the requests for help. I think both of them should be arrested and… Read more »

Betty G. Todd

I think it nonsense and useless to enter into a lawsuit. Don’t we have they have the weapon of impeachment? It’s past due.

Wayne Peterkin

Myth 10: The author is right but ignores another important point. The number of Executive Orders is not the issue. It’s what those orders actually do. Many Executive Orders are proper uses of presidential authority and do not violate The Constitution while others may be an illegal abuse of power. That is the big issue here, not the number of orders issued. I see lawyers making interpretations based on precedents all the time which I understand. However, I have been arguing that when a constitutional crisis exists involving abuse of power and clear violations of the Separation of Powers, that the SCOTUS can and should take unilateral action to resolve the crisis with no lawsuit being necessary. Regardless of “precedents”, my copy of The Constitution does not appear to require “standing” or any other qualification to resolve a constitutional crisis, since all Americans should have standing in such issues and… Read more »

SueK

Never mind lawsuits, impeachment, defunding, etc; arrest, try, convict, and jail this usurper and every member of Congress who is complicit in this scheme to destroy America.

Let’s hope there’s some semblance of America left. We’ve picked up the pieces before and we can do it again, but this entire regime needs to go. NOW!

KarenFaye

DEFUND every Exec. order he writes!!! Obama is on a power trip, and intends to finish the job of wrecking the foundation of this country before anyone manages to stop him. He’s going to grant amnesty to millions of ILLEGALS come hell or highwater – watch for it – and unleash the demons that await the destruction of this nation! HE DOES NOT CARE FOR HUMANITY, HE DOESN’T CARE FOR LAWS, HE DOESN’T CARE FOR ANYONE OR ANYTHING BUT BARACK BARRY SOETORO HUSSEIN OBAMA (if, in fact those are his names). He’s a fake, a fraud, a joke played on America that is backfiring. HE ISN’T UNSTOPPABLE — just do it! In the 5 weeks the Senate and House are recessed, there is no telling what will come across. I’m ready to stand in a large group outside the Whitehouse calling for a rope, if need be. We need to… Read more »

Rosie

One of the biggest objections I hear regarding this lawsuit is the amount of TIME it takes for lawsuits to make their way through the court. By that time, Obama’s presidency (I use that term loosely) will be over.

Citizens want to know why we can’t stop a lawless president NOW — not 2 years from now!

Congress needs to get a backbone and start defunding laws which were illegally changed or written through executive orders. If Obama claims that he has the right to do whatever he wants through executive order, then certainly Congress can counter back with THEIR right to control the $$$$’s. Even the extremely liberal Georgetown University professor Jonathan Turley understands Obama his dangerously stretching the use of executive privilege, yet Congress is still too timid to exercise powers that are explicit in the Constitution.

Ken Palka

Thanks for the above myths. I can use your logical information when discussing with my friends who sometimes lean to the left.

Hunter

I’m afraid there will be a lot of time and a lot of dollars spent for trying to impeach the President. What needs to be done is proving that Obama was born in Kenya instead of Australia. It is my understanding their are some people who have seen or has a copy of the official Birth Certificate, however I’m afraid the one who has the official info does not have enough monies to pay for the protection of their lives. Anyway, it would destroy every unChristian, unGodly action that he ever did including Obamacare and I understand over 40,000 executive orders done illegally. It’s sad to say that our President is under condemnation which he doesn’t have enough sense to know it as his God and Mohamad will never allow Islam people to enter 1 of the 12 gates of Heaven which is explained in the one and only Holy… Read more »

BOSUX

Barrack Insane Obama is the worst thing that has happened to America since 1861. One possible reason he has been pushing allowing illegal aliens into the US is that he is one himself.

Ethan Allen

Wouldn’t it be easier to just defund Obama’s executive orders?