Boehner Considering House Lawsuit Against Obama

Speaker of the House John A. Boehner, R-Ohio, is considering a lawsuit on behalf of the U.S. House of Representatives against President Obama, "challenging the executive actions that have become the keystone of the administration," reported RollCall last week.

Boehner told the House Republican Conference during a closed-door meeting Tuesday morning that he has been consulting with legal scholars and plans to unveil his next steps this week or next, according to sources in the room. [snip]

Boehner’s legal theory is based on work by Washington, D.C., attorney David Rivkin of Baker Hostetler LLP and Elizabeth Price Foley, a professor of law at Florida International University College of Law.

Rivkin said in an interview that in addition to proving institutional injury, the House would have to prove that as an institution, it has authorized the lawsuit. A vote by the Bipartisan Legal Advisory Group would do so.

The suit would also have to prove that no other private plaintiff has standing to challenge the particular suspension of executive action and that there are no other opportunities for meaningful political remedies by Congress, for instance by repeal of the underlying law.

“Professor Foley and I feel that if those four conditions are met, the lawsuit would have an excellent chance to succeed. This is particularly the case because President Obama’s numerous suspensions of the law are inflicting damage on the horizontal separations of powers and undermine individual liberty,” Rivkin said.

Rivkin and Foley have argued in op-eds that most of Obama’s executive orders have been benevolent — that is, they have exempted classes of citizens from the law, for instance through deferred action for childhood arrivals. Therefore, no individual has standing to sue because the actions have helped people. Congress as an institution, however, can sue because the actions flout the laws it has have passed.

They have argued that short of impeachment, there is no other check to the president’s issuance of executive actions.

In Stopping a Lawless President, George Will argues a lawsuit remedy is preferable to an impeachment proceeding:

Advocates of extreme judicial quietism to punish the supine people leave the people's representative no recourse short of the extreme and disproportionate "self help" of impeachment. Surely courts should not encourage this. The cumbersome and divisive blunderbuss process of impeachment should be a rare recourse. Furthermore, it would punish a president for anti-constitutional behavior but would not correct the injury done to the rule of law.