Barack Obama, left, and John Boehner, right. (Photos: Diego M. Radzinschi/NLJ)
In an op-ed Monday, House Speaker John Boehner, R-Ohio, pressed his threat to sue President Obama over his executive orders, saying that Obama has “consistently overstepped his authority under the Constitution.”
“The president has not faithfully executed the laws when it comes to a range of issues, including his health care law, energy regulations, foreign policy and education,” Boehner wrote on cnn.com.
Ever since Boehner first outlined his plan in a June 25 memo to House Republicans, much has been made over whether the speaker’s would-be suit flows from an actual, legal harm or is another dose of Washington politicking.
Obama last month on ABC’s Good Morning America called the suit “a stunt.”
“What I’ve told Speaker Boehner directly is: ‘If you’re really concerned about me taking too many executive actions, why don’t you try getting something done through Congress,’ ” Obama said.
Regardless of the motive, Boehner’s suit—should he file one—faces tough chances in court, said constitutional law scholar Suzanna Sherry.
Sherry, a professor at Vanderbilt University Law School, pointed to the Supreme Court’s 1997 ruling in Raines v. Byrd, which found legislators lack standing to challenge the constitutionality of laws.
“If I don’t happen to like what the president is doing, I can’t just bring suit unless I am directly injured,” Sherry said in an interview with The National Law Journal. Sherry expressed doubt that Boehner can prove he has suffered any injury rooted in the president’s executive actions.
White House general counsel Neil Eggleston was dismissive of any potential lawsuit from the House speaker.
“As I used to tell clients in private practice, anybody can sue anybody over anything,” Eggleston told The Associated Press. “The fact that he’s going to bring some lawsuit is not going to affect what the president is going to do.”
Former White House lawyer David Rivkin, who served under the Reagan and George H.W. Bush administrations, in a January article with Elizabeth Foley, a professor at Florida International University College of Law, argued that the high court’s decision in Raines only created a presumption against congressional standing—not an absolute one.
Courts should allow congressional standing in certain instances where there is no plaintiff, Rivkin and Foley wrote. They pointed to “benevolent” suspensions of federal laws, citing, for example, the Obama administration’s deferred deportation of certain young immigrants.
“These actions have helped affected individuals, rather than harmed them, even while shredding the rule of law,” Rivkin and Foley wrote. “In such situations, courts should permit congressional standing as a last resort to enforce the basic constitutional architecture.”
Rivkin and Foley also said that whereas the plaintiffs in Raines were an “ad hoc” group of lawmakers, Boehner could acquire standing if the House passes a resolution to sue the president as an “official body,” putting the case “in a different category than Raines.”
Such a move, the authors argued, would create a lawsuit that “is not an isolated political dispute, but a representation by one of the two chambers of the legislative branch that the institution believes its rights have been violated.”
On that strategy, Sherry said, “If the House votes as a whole to bring the suit, that’s a harder question. And one that [the Supreme Court] has not addressed.
“Every new case about where the president’s powers end is unique,” Sherry said. “So the court has to extend the statutory precedent every time.”