It’s been in the works for awhile. Tom Rice introduced a resolution back in December that would allow the House as a body to sue O for failing to faithfully execute the laws. By January, he had at least a dozen colleagues pushing the leadership on it. By February, there were 43 co-sponsors. I wrote about it at the time, noting that Rice claimed he had met resistance from at least one member of the House leadership who thought his bill seemed “radical.”
I wonder what changed.
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.
Boehner spokesman Michael Steel said further action is necessary because the Senate has not taken up bills passed by the House targeting executive actions. The House has passed a bill expediting court consideration of House resolutions starting lawsuits targeting executive overreach and another mandating that the attorney general notify Congress when the administration decides to take executive action outside of what has been authorized by Congress.
“The president has a clear record of ignoring the American people’s elected representatives and exceeding his constitutional authority, which has dangerous implications for both our system of government and our economy,” Steel said. “The House has passed legislation to address this, but it has gone nowhere in the Democratic-controlled Senate, so we are examining other options.”
Maybe Boehner figures that after all the sturm and drang of primary season, and with so much upset among the base over an amnesty that may or may not be looming, slapping Obama with a constitutional suit over his autocratic excesses on ObamaCare, DACA, etc, is just the trick to unify Republicans before the midterms. The mechanism for how they’ll bring the suit on behalf of the House isn’t quite clear yet: It might involve a vote of the House’s “Bipartisan Legal Advisory Group,” which consists of three Republicans and two Democrats, and/or a vote of the entire House, but either way the GOP has the numbers. The “legal scholars” Boehner’s been consulting with, incidentally, are almost certainly David Rivkin and Elizabeth Price Foley, who wrote an influential op-ed a few months ago about how the House might be able to use the courts to rein Obama in. George Will summarized their argument this way in his recent column about “stopping a lawless president”:
Courts, understandably fearful of being inundated by lawsuits from small factions of disgruntled legislators, have been wary of granting legislative standing. However, David Rivkin, a Washington lawyer, and Elizabeth Price Foley of Florida International University have studied the case law and believe that standing can be obtained conditional on four things:
That a majority of one congressional chamber explicitly authorizes a lawsuit. That the lawsuit concern the president’s “benevolent” suspension of an unambiguous provision of law that, by pleasing a private faction, precludes the appearance of a private plaintiff. That Congress cannot administer political self-help by remedying the presidential action by simply repealing the law. And that the injury amounts to nullification of Congress’s power.
No problem on the first and second steps. No real problem on the fourth either: By unilaterally suspending major provisions of O-Care like the employer mandate, for instance, Obama’s obviously nullifying duly enacted federal statutes. The sticking point, I think, will be the third step. Congress could, in theory, undo all of Obama’s executive orders by overriding them with a two-thirds veto-proof vote of both chambers. The fact that there’s no chance of that happening because the Senate is controlled by Democrats might be cited by courts as proof that this is really a political question, something to be settled by voters rather than by judges. Will pushes back hard against that in his piece, arguing that it can’t be the case that courts will bless repeated separation-of-powers violations simply because one party and a comatose electorate are happy to look the other way at them. Hopefully not, but if the Rivkin/Foley approach is adopted by SCOTUS, it might lead to one or both chambers of Congress routinely suing the president for all but the most pedestrian executive actions. That’s not a bad outcome if you’re a fan of redistributing a little power from the executive branch to the legislative, but federal judges might get fidgety at the thought of being sucked into the middle of it.
The hard thing here for the GOP, though, isn’t the legal battle but the political battle. Like I said when I wrote about this in January, they’re essentially betting that there’s enough of a civic reservoir among the public that Republicans won’t be punished if they win this suit and Obama is forced to cancel his executive DREAM amnesty or to apply the nastier provisions of ObamaCare that he’s suspended so far. O’s going to go to voters and say, “I tried to help you by protecting you from bad laws. Republicans wouldn’t let me.” The GOP’s going to then turn around and say, “What he was doing was unconstitutional. Case closed.” Knowing American voters as you do, which approach do you think they’ll be more receptive to, the bottom-line one or the constitutional one? This is why Boehner held off until now on suing, of course — because he has a sneaking suspicion he wouldn’t win that public opinion battle, even though he should. By filing this suit only a few months before the midterms, maybe he’s counting on it being tied up in court long enough that he won’t have to worry about the outcome until after the votes are in.
Update: That didn’t take long.