According to the constitution congress passes bills and once they are signed by the executive, the president is supposed to execute them. That isn’t how it has worked out the Obama administration. Speaker Boehner told his house GOP caucus on Tuesday that he is hoping to announce a lawsuit against President Obama within a few days, challenging the executive actions which have become so commonplace since he became president.
The lawsuit could set up a significant test of constitutional checks and balances, with the legislative branch suing the executive branch for ignoring its mandates, and the judiciary branch deciding the outcome.
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.
According to the Speaker’s spokesman Michael Steel who confirmed the possible action to NBC’s Luke Russert among others:
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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. The House has passed legislation to address this, but it has gone nowhere in the Democratic-controlled Senate, so we are examining other options.
Daniel Newhauser of Roll Call adds:
It remains unclear which executive action or actions the House would challenge, but Obama has given Congress ample targets. In the last several years, he has issued executive actions halting deportations of hundreds of thousands of immigrants who came to the country as children, extending the family and medical leave benefits to gay couples and raising the minimum wage for federal contractors. He has also worked around legislative deadlines for enacting provisions of the Affordable Care Act and issued other executive actions relating to the environment and the gender and race pay gap.
(…) individual members of Congress do not have standing to sue because they are not legally recognized as injured parties. Congress as an institution, on the other hand, may sue on the grounds that there has been institutional injury done because their legislative powers have been nullified.
One path Boehner could take would be to convene the Bipartisan Legal Advisory Group, a panel of leaders created in 1993 that votes on whether or not to sue on behalf of the House. The group consists of the speaker, the majority leader, the majority whip, the minority leader and the minority whip, and it would act on a majority vote.
Sounds like a 3-2 vote.
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.
Nancy Pelosi of course claims that this is nothing but a political fishing expedition. But in the end this would be the appropriate move for both Democrats and Republicans because one day it will be a GOP president over reaching. A law suit such as this would be the only option for the Congress short of impeachment.