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.
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.
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.
Great suggestion, Peter, but politicians do everything at the taxpayer’s expense. They consider themselves better than we are and until we realize that we are their employers and boot them in the rear end, we’ll have to put up with it. An honorable person won ‘t run because they are threatened with harm to themselves and their families or they will have manufactured skeletons come out of their closets.
Don’t ever let a bull loose in a china shop……
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 wouldn’t mind if someone took a pot shot at him, but then we’d have to put up with that idiot Biden and the lefties making a martyr out of Obummer.
Apparently, you never understood the thing about the birth certificate. It didn’t have anything to do with where he was born, it was whose names are on the original document. And that’s probably why the White House fought the release of the original. Daddy wasn’t some student from Kenya, Daddy was an activist for CPUSA., which tends to explain why our President is a Marxist.
I heard he bought one in North Carolina.
They bought one in Asheville, N.C. Glad I moved.
Sally, I am with you 100%, never in my life has a person given me such negative vibes. What hurts most, is that Obozo/Obummer insults our intelligence day after day. Whenever he smells an attack coming, he switches gears thinking that Americans are so dumb we will actually forget the real issues…..but then, lots do…..when we learned who his mentors were, was that not enough not to vote him in???
This is the biggest HOAX in American history. At least, it woke this grandma up. To think I rarely got involved in politic until this regime took over. All I can do, is try to educate others.
The failure of the United States of America? It’s US! We were given the most unique form of governance the world has known & as time has past, ignorance & idleness has allowed our sovereign rights to be trampled underfoot. Our schools, which we sacrifice our treasure to, teach avoidance of politics & little history(just wait until common core destroys the next generations) & ODL (our dear leader) & his sycophants endorse more social engineering ( free stuff) without responsibility. Meanwhile we fail to engage regarding our life … Politics!
Which controls everything. ( it’s impolite to discuss politics in social settings) Lise keep educating others & request that God, Bless America
We could handle Biden – he can’t think for himself. Let them “martyr” Obama – they did it for JFK, and the world has survived. If Michelle Obama wants to run in California, let her. They deserve another nut. The Obama’s have also purchased a home in Asheville, N.C. — glad I left the area when I did.
We are going to be stuck with Obama and his lawlessness for two more years — we have to swallow it and go on. There won’t be any impeachment, and the lawsuit will do nothing more than draw attention to the fact that Obama will say, “see, Congress has time for lawsuits, not passing bills”. (forgetting that there are 387 bills sitting on Harry Reid’s desk waiting for over a year) There seems to be nothing that sticks to TEFLON MAN …… NOTHING. He could shoot Michelle, be seen by 20 witnesses, still holding the smoking gun when the cops arrived, and be found innocent. Just the way it is. Some won’t say anything about Obama because of fear; others because he’s black, and they don’t want to be called racist; and the rest of the idiots just think he’s “wonderful” …… because he gives them so much free stuff.
I love you, Sally I! :D
President Obama has not risen to the status of Caesar yet. Not even close so can the ‘pot shot’ talk. That kind of talk just causes more of a problem. I temper my disatisfaction with the federal government by thinking about how God is in charge and what goes up will come down.
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.
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!
Did you forget the Civil War era of our history when you wrote that this president “has ruined our country and polarized it more than ever in history”? For too many of us, history began the day we were born.
A HISTORY MAJOR and lover.
Welcome to communism warmed over.
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 tried for treason against this country and the American people.The man is trying to turn this country into a third world country and socialism is also rearing it’s ugly head. Obama cares nothing for the American people, we have homeless and starving here but he would rather give money to countries that want to kill us. I feel compassion for people from other countries that are poor but there is a right and wrong way to do things and the wrong way is what is happening now. you just don’t let people run over the boarders illegally and give the free this and free that, when you don’t take care of your own. Obama care is the worst thing any president has done to this country, it is a joke and the ones who got on it are going to have a rude awakening come next year. The washington Post got wind of a letter Obama wrote to the insurance companies telling them not to raise their premiums till after the november elections, now is that down and dirty or what but that is the way he plays.it is the seniors who are getting raped with obamacare, we are losing income from our SS checks which he is stealing to pay for his Obamacare and next year we will lose more of our entitlement. He did not get the amount of people he needed to sign up so he has to get the money from somewhere so why not steal it from seniors, as he made it clear in one of his first speeches he does not want to take care of old people, if he cared he would not have made up a panel of his cronies who will decide who will get care and who won’t, now what political trend does that sound like? The man needs to go, he has committed more crimes against the constitution and the American people than any other president in history. He has done nothing but play golf, take vacations and fritter away his time on our money. He pulled the wool over a lot of peoples eyes but America now is the time to wake up and take America back because no good will come of another two years of him in office. He is a fraud, liar and to me no better than a common criminal and he needs to be removed from office before he can do any more damage to this country and he can take the other two crooks with him, pelosi and Reed, they have overstayed their welcome also. I will stan with that other person in front of the Whitehouse and demand his removal from office. We will take America back.
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.
Impeachment will not work in this administration, as we would need a 2/3rds vote from the Senate, and that’s not likely to ever happen.
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 can be harmed by constitutional abuse. The SCOTUS should get off their dead butts and take up this issue without a Republican lawsuit.
Reply to Mr. Peterkin: I believe he did answer that in Myth 10, that it is not the number but the what the ones he does sign are the bigger issues and what the abuses are. In Myth 10, he could have explained it a bit better.
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!
Impeachment is the only way in my mind short of suspending any funds for his executive branch hopefully no pay check either. We must stop him and his kind Pelosi and Reed. Move now
Stephen, do you really think we could get 2/3rds of the Senate to vote for impeachment?
Even if he were impeached , we would be left with Shotgun Joe. Now think about having a total idiot in the lead.
Might not take too long to impeach “Shotgun Joe” either. Stand up for the long haul!
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 put the fear of God into Obama – even though I doubt he’s a believer.
Hi Karenfaye, I’m with you on it is past time for a million American march on the White House to stop Obama and his destructive actions intended to bring down this country.
Congress doesn’t need a 5 week vacation. They’re on sabbatical most of the time anyway. They should stay and do what’s needed to bring back America. At least, they could keep a thumb on some of Obama’s antics.
Karenfaye, you stated precisely what I, and I’m sure many others, are thinking! Just one thing… can we get enough rope for his cronies, too?
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.
Thanks for the above myths. I can use your logical information when discussing with my friends who sometimes lean to the left.
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 Bible(King James Version) as any other so called bibles are
Satan inspired instead of the One True God, in fact, only Jesus Christ(Son of God) is the only one
who can get you into 1 of the 12 gates of Heaven. Everyone in the World needs to memorize
John 14:6 which is better than John 3:16 which many people know. The other thing all people in
the World needs to know you have to be a Christian to enter 1 of the 12 gates of Heaven as
explained in the Book of Revelation of the one and Holy King James Bible. Being a disciple of
God and the lord Jesus Christ, I hope and pray this message will be seen by all peoples of the
World as we are getting real close to the “Battle of Armageddon” and all should know that Jesus
Christ will be coming to close that war down. Amen.
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.
I need to know a little more about 186l. One of the worst things that ever happened was
what I tho’t in the 50’s which someone came out of the closet and look how many sick
people we have in the USA including all of the sick people in Congress, the Supreme Court
and the President. All of these people are under condemnation and the only way they will
ever be able to enter 1 of the 12 gates in Heaven is by repenting of their sickness and
believing on the Lord Jesus Christ. Everyone in the World needs to memorize John 14:6
from the one and only King James Holy Bible. There is no other way. Amen.
A little bit more about 1861 is the uncivilized Civil War. At that time the united states of America became bankrupt. With the southern states walking out of a sitting Congress the quorum was lost, thus no way to conduct lawful business also no way to set the next session or adjourn so the assembly just disbanded at that point there is no way for the Congress to ever assemble again. Under the Liber Code Lincoln called the Congress into session, that is not a Constitutional act!!!! As a result we have been under the War Powers Act (Liber Code) since then. The Congressional act of 1871 turned the Government in DC into a Corporation , not Constitutional , the Constitution was put in the closet and the United States Government INC. was in charge.
Follow that up with the Federal Reserve Act 1913 and HJR192 and you have a little more information.
Indeed, he is insane. That is what makes this Tragedy even more critical. This egomaniac will not accept defeat. I fear what he and his cronies will do when the gig is over. Their hatred is so deep, they are a step away from the suicidal maniacs around the world. Why don’t they move to a country where their political needs will be met?
There are plenty of good people waiting in line to step foot in our beautiful country. They are willing to die for the privilege of become Americans. Yet some politicians want to turn our America the Beautiful into the countries these people can not wait to escape…………
Wouldn’t it be easier to just defund Obama’s executive orders?
By far the best tactic for the REPUBS. is to clearly indicate why they disagree with each bad issue by Obama and the Senate and concisely indicate a better alternative if they had power, but indicate that they will abide with what Obama wants for the next 21/2 years because the People re-elected him and rejected the REPUBS. It is up to the People to vote differently in 2014 and 2016 if they desire change and some reversibility. Otherwise, you are getting what you asked for.
We’re talking about Obama’s illegal executive orders. We do not elect or re-elect people to break the law.
Obama snubbed his own Senate majority when his anti-coal bill did not pass, so he bypassed them and enabled it through executive order directly with the EPA. In other words, he stripped away the rights of the Senate majority who voted as a reflection of what their constituents wanted. They were the majority — they had the POWER, and Obama went around it anyway.
You said the Congress should just abide since they don’t have the power, but clearly when you have a lawless president, the power means nothing, and that is exactly what this lawsuit is about.