Yesterday, the House of Representatives voted to proceed with a lawsuit against President Obama. The President has, in my opinion, overstepped his constitutional authority on more than one occasion, whether by failing to enforce laws or unilaterally rewriting laws. And it is this habitual line-stepping on which House Republicans base the lawsuit.
Obama responded by calling the suit nothing more than a “political stunt.” And the President is right.
House Republicans see the lawsuit as an acceptable middle path: it’s not as aggressive as impeachment (which may stir the Democrat base into action during the midterm elections) but it’s more aggressive than doing nothing (which may alienate the Republican base). It’s a symbolic, political slap-fight. So the House has capped off the "least productive" year in Congressional history—I say this tongue-in-cheek because, hey, maybe Congressional productivity shouldn’t be measured by how many pages Congress adds to the United States Code—by pursuing a lawsuit that will hardly be productive. And so I fault the House, both for plodding down a course that will likely lead nowhere and for failing to take alternative actions if the House actually believes the President’s conduct is egregious enough to file such a suit.
First, the suit has significant legal hurdles. The House seems to lack standing to bring the suit at all. I have seen the argument made that the House has standing, in part, due to the nature of the aggrieved congressmen. If, rather than bringing the lawsuit as a group of bitter congressmen, the group brings the lawsuit on behalf of the institution as a whole (i.e., by voting on a resolution like yesterday’s), it might then have standing. But I have not (yet, anyway) read a compelling argument as to the nature of the House’s injury-in-fact. Is House Republicans’ argument simply that a law Congress passed—specifically, the Affordable Care Act—hasn’t been executed properly? On that logic, wouldn’t the House then be able to sue the President whenever a law has been improperly executed? That’s an arrow that has been stuck in the House’s quiver for over 200 years. I am not, however, as well-versed in standing jurisprudence as others on here, so I would be interested in hearing if my understanding is wrong.
Second, as to the alternative measures, the House could, if it so chose, try to impeach the President. And I think you could make a straight-faced argument that members of the House have an obligation to pursue impeachment if they believe the President’s conduct is impeachable. Isn’t that what our system of checks and balances is all about? And don’t members of the House have a duty to uphold the Constitution? While impeachment may not be the most politically advantageous, and it may not lead to a conviction in the Senate, it is part of the House’s job to keep the President in check through its power to impeach. The House owes a duty to its constituents to protect them from the aggrandizement of power in the executive. Sure, the House has some discretion, akin to prosecutorial discretion. But how much? If the House believes that egregious Constitutional violations have occurred, perhaps it shirks its own duties by failing to impeach. (The impeachment option, too, adds to the House’s legal obstacles: although the House’s having that alternative, in itself, does not preclude it from pursuing other remedies—such as a lawsuit—the availability of another remedy may be enough for a court to avoid deciding the issue.)
There may be some political cache in filing the lawsuit. And, given my views that the President has, in fact, overstepped his bounds, I hope that I am wrong and the suit ultimately curbs his authority. But it sure seems like a big waste of time.
Obama responded by calling the suit nothing more than a “political stunt.” And the President is right.
House Republicans see the lawsuit as an acceptable middle path: it’s not as aggressive as impeachment (which may stir the Democrat base into action during the midterm elections) but it’s more aggressive than doing nothing (which may alienate the Republican base). It’s a symbolic, political slap-fight. So the House has capped off the "least productive" year in Congressional history—I say this tongue-in-cheek because, hey, maybe Congressional productivity shouldn’t be measured by how many pages Congress adds to the United States Code—by pursuing a lawsuit that will hardly be productive. And so I fault the House, both for plodding down a course that will likely lead nowhere and for failing to take alternative actions if the House actually believes the President’s conduct is egregious enough to file such a suit.
First, the suit has significant legal hurdles. The House seems to lack standing to bring the suit at all. I have seen the argument made that the House has standing, in part, due to the nature of the aggrieved congressmen. If, rather than bringing the lawsuit as a group of bitter congressmen, the group brings the lawsuit on behalf of the institution as a whole (i.e., by voting on a resolution like yesterday’s), it might then have standing. But I have not (yet, anyway) read a compelling argument as to the nature of the House’s injury-in-fact. Is House Republicans’ argument simply that a law Congress passed—specifically, the Affordable Care Act—hasn’t been executed properly? On that logic, wouldn’t the House then be able to sue the President whenever a law has been improperly executed? That’s an arrow that has been stuck in the House’s quiver for over 200 years. I am not, however, as well-versed in standing jurisprudence as others on here, so I would be interested in hearing if my understanding is wrong.
Second, as to the alternative measures, the House could, if it so chose, try to impeach the President. And I think you could make a straight-faced argument that members of the House have an obligation to pursue impeachment if they believe the President’s conduct is impeachable. Isn’t that what our system of checks and balances is all about? And don’t members of the House have a duty to uphold the Constitution? While impeachment may not be the most politically advantageous, and it may not lead to a conviction in the Senate, it is part of the House’s job to keep the President in check through its power to impeach. The House owes a duty to its constituents to protect them from the aggrandizement of power in the executive. Sure, the House has some discretion, akin to prosecutorial discretion. But how much? If the House believes that egregious Constitutional violations have occurred, perhaps it shirks its own duties by failing to impeach. (The impeachment option, too, adds to the House’s legal obstacles: although the House’s having that alternative, in itself, does not preclude it from pursuing other remedies—such as a lawsuit—the availability of another remedy may be enough for a court to avoid deciding the issue.)
There may be some political cache in filing the lawsuit. And, given my views that the President has, in fact, overstepped his bounds, I hope that I am wrong and the suit ultimately curbs his authority. But it sure seems like a big waste of time.
I have to disagree with you here, JD. The House should bring suit.
ReplyDeleteI think its beneficial to first break down the President’s objectionable conduct into three categories: (1) A failure to enforce the laws (e.g., federal marijuana laws), (2) A failure to defend the laws (e.g., DOMA), and (3) unlawful executive orders. I would argue that the House should have standing to sue with respect to #1 (Normatively, that is. I do not purport to know what the actual jurisprudence says.), the House should not have standing to sue with respect to #2, and “it depends” for #3.
With respect to #1, I would limit the activity that falls into this category to those refusals to enforce that are based solely on political motives. Thus, the President’s failure to enforce a particular law because he simply does not have the available resources to enforce is not an unconstitutional skirting of his duties. On the other hand, a failure to enforce the laws solely because he disagrees with the underlying policy of the legislation is at least as objectionable an affront to the separation of powers as a line-item veto. Nor do I think that the President’s oath to uphold the Constitution saves him, even when he earnestly believes that the subject legislation is not only poor policy, but unconstitutional. All federal employees take an oath to the Constitution. Do we feel comfortable letting TSA employees decide who gets pat downs and who doesn’t? Why should the President’s opinion get any more sway? He is the executive. Under the Take Care Clause he must faithfully execute. Leave the interpretation to the judiciary. As Marshall said, it is emphatically the province and duty of the judicial department to say what the law is.
As to the institutional standing of the House in example #1, I think it is appropriate. It is hard to imagine what other parties could gain standing from the President refusing to enforce a law? Take the refusal to enforce the marijuana laws, for example. Who would have standing to challenge that? The cigarette or alcohol business for the corresponding drop in sales? Seems like a stretch. Furthermore, there isn’t anything else the House can do to force the President’s hand. They can’t legislate more. In short, the President’s failure to enforce is a big deal, it should be addressed, and it is hard to imagine who else would have standing to do so.
With respect to #2, I think a failure to defend is less concerning. While I do feel that the President has a duty to defend the laws generally, I think that duty is less than the duty to enforce, which is the fundamental role of an executive. Also, as seen in the DOMA case, other groups (i.e., the house, amici) can fill the void where the SG opts out (In fact, given the Government’s sub .500 record before SCOTUS in the last term (including 9 unanimous defeats), perhaps a third party arguing the case is a better choice…). This is an important distinction from #1—there can be no third party executive.
With respect to #3, I would apply the same principles as #1 and #2. Where there is another party that could potentially have standing, House standing is inappropriate. For example, an executive order extending the deadlines for ACA might not give anyone standing (except, perhaps, the insurance companies that probably don’t want to get on the administration’s bad side). In this case, House standing seems appropriate. Alternatively, where an executive order places additional duties/regulations on a party, thus giving an obvious choice of a litigant, house standing seems less appropriate.
On a side note, I think/thought both DOMA and federal drug laws are unconstitutional. That said, it was not the role of the President to say as much.
I think this lawsuit is going to end up costing the GOP come November. For the GOP base, this is the equivalent of throwing a molotov cocktail into the middle of a bonfire. The base is already riled up over immigration, Obamacare, foreign policy, and Obama in general. They already were going to turn out to vote in November. What the House just gave the Democrats is a theme on which to campaign, fundraise, and get the vote out. The Democrats recently also have been really good at collectively choosing a message and running with it. Going into this election cycle, they did not have much to rally around. There even was some general apathy within the rank-and-file. That's gone now, and I think it will prevent the GOP from recognizing the gains it was on the cusp of making.
ReplyDeleteAs for the lawsuit itself, not only is there a standing issue in the sense of whether the House has an injury-in-fact, there also are issues with whether there is an adequate remedy, whether this is a political question, and whether the whole thing will be moot by the time it gets in front of a judge.