No Court?

06.26.14

Boehner May Not Have the Ability to Sue Obama After All

The House speaker trumpeted his plans Wednesday to file a suit against the president over his ‘king-like’ executive orders. But legal experts say one doctrine may stand in the way.

John Boehner is ready to sue President Obama, but the House speaker may not be able to make it through the courthouse doors.

Boehner announced Wednesday that he would sue the president for his failure to “faithfully execute the laws of this country.” In the opinion of the speaker, according to a memo he circulated, Obama’s reliance on executive orders meant that he was acting with “king-like authority at the expense of the American people and their elected legislators.” As a result, Boehner said, he planned to sue the president over executive orders to be named later under the aegis of a resolution passed by the House of Representatives.

But Boehner may not be able to do so. According to Erwin Chemerinsky, the dean of the University of California, Irvine Law School, the speaker of the House does not have the ability to sue the president in this situation, even if Congress says he does. Chemerinsky says “standing,” the doctrine that allows a person to file a lawsuit in federal court by demonstrating that real harm has been caused to them, is defined by the Constitution. As a result, even if Congress passes a law, or in this case a resolution, which only requires approval by the House, it will not be binding on federal courts, as the Constitution trumps any law, let alone a resolution, and does not give members of Congress the ability to sue if they cannot prove real harm.

Even if the courts hear the case, Michele Bachmann noted, they may decide it’s a “political question” and thus out of their jurisdiction.

Michael Steel, a spokesman for Boehner, said there were no issues with standing. Other Republican representatives echoed that position, including Rep. Charles Boustany of Louisiana, who called Boehner’s proposed suit “an outstanding move.” Conservative Rep. Steve King of Iowa added, “This is something that I’ve looked at and worked towards for a long time.”

Democrats, of course, were more skeptical. Rep. Rosa DeLauro of Connecticut called Boehner’s plan “ludicrous” and an example of an unproductive partisan Congress trying to obstruct Obama further. Surprisingly, some Republicans also spoke out against Boehner. Former presidential candidate Michele Bachmann, who is also a lawyer, echoed Chemerinsky’s concerns and suggested to The Daily Beast that Congress may have problems with the “standing” doctrine if it tries to press claims over Obama’s executive orders in the courts. Even if the courts hear the case, she noted, they may decide it’s a “political question” and thus out of their jurisdiction.

It’s still unclear what executive orders Boehner might file suit to overturn.