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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