Orange You Glad He’s Around?

07.09.14

Obama Should Counter John Boehner’s Lawsuit—and Here’s How He Can Do It

The best way for Obama to expose Boehner’s gimmicky lawsuit? Countersue! Never heard of Rule 11 in civil procedure? Well, read on.

President Obama has really pissed off John Boehner this time. The Speaker’s orange face must have turned red, because he was so irate that he sat down—or at least a member of his staff did—and penned a 570-word diatribe published on Monday telling us why he must now spend our taxpayer dollars to sue Obama.

Did Boehner gave any specific reasons why he needed to employ the extraordinary remedy of suing a President—as opposed to seeking a political solution to a political issue? Nope. Instead Boehner offered up sweeping statements like, “The President has circumvented the American people and their elected representatives through executive action.” (I wonder, if Boehner had been House Speaker in the 1980s, if he would have sued Ronald Reagan, who issued more than double the number of executive orders as Obama’s 182, coming in at 381?  Actually, I don’t.)

If Boehner files this lawsuit, I can only hope that Obama files a bunch of counterclaims.  I’d love to see Obama ask a court to compel Boehner to actually do some work, like bring immigration reform or raising the minimum wage up for a vote.

And Obama should definitely sue Boehner to reimburse us for the costs associated with the 54 times the GOP-controlled House has voted to repeal Obamacare. Per CBS’s 2013 calculations, those meaningless votes cost $52.4 million in taxpayer’s dollars.

Obama’s counterclaims would certainly rile up the Democratic base and score some great headlines. But these claims by Obama would be patently without merit. These are political issues that need to be resolved via the political process, not via the judiciary.

And that’s the exact same reasoning that applies to Boehner’s threatened litigation against Obama. Boehner and the Republicans in the House are trying to use the court system to score political points—nothing more. This lawsuit is like a horrible sequel—or possibly a prequel, depending on timing—to the upcoming Benghazi hearings.

But the key difference between the Benghazi hearings and a federal lawsuit is a little thing called “Rule 11.”  That’s one of the 87 rules of federal civil procedure (PDF) that govern civil lawsuits in the federal district courts.

Even Erick Erickson wrote on Monday: “John Boehner’s lawsuit is nothing more than political theater and a further Republican waste of taxpayer dollars.”

You see, if it turns out that the Benghazi hearings are without merit, the only consequence for the GOP is a possible political backlash. But in federal court, if you pursue an “objectively baseless” claim, you can be sanctioned by the court (PDF) under Rule 11.

These sanctions range from getting hit with monetary fines to being ordered to reimburse the other parties in the lawsuit for their legal fees. And those sanctions can be assessed against each lawyer individually who signed the pleadings, their law firm, and the actual parties to the litigation. (I’d love to see the House GOP pass the hat around to pay their sanctions.)

So here’s the big question: Is there an “objective” legal basis for Boehner to file the first of its kind claim by a chamber of Congress to compel a President “to follow his oath of office and faithfully execute the laws of our country”?

We don’t have the actual complaint yet, but we know the crux of Boehner’s claim is that Obama has abused power in the way he has used executive orders. However, Eric J. Segall, a law professor at Georgia State University, explained to me that “every U.S. President is given great discretion when implementing laws that Congress has passed, and Obama has not acted differently in that capacity from any President since the New Deal.”

The National Review acknowledged in a recent article that in the world of “legal academia,” the lawsuit is seen as doomed because of questions concerning the legal standing to bring such a lawsuit. Even Erick Erickson wrote on Monday: “John Boehner’s lawsuit is nothing more than political theater and a further Republican waste of taxpayer dollars.” (Of course, what people like Erickson and Sarah Palin want the House to do is impeach Obama, not file an impotent lawsuit.)

Two of the lawyers advising Boehner, Elizabeth Foley and David Rivkin, also conceded to National Review that it was not clear if the House had standing to bring such a claim. When asked how they would overcome these legal challenges, they responded, with “creativity.”

Look, I‘m all for creativity.  It’s the perfect for a law school classroom when students are debating the penumbras of the Constitution. But a federal courtroom is intended to be a forum solely for claims that have merit—especially when we are the ones footing the bill for Boehner and his lawyers to be exploring their “creativity.”

If Boehner does file his ill-advised lawsuit, it’s my hope that Obama’s legal team swiftly files a motion for Rule 11 sanctions against Boehner and his legal team. Of course, the reality is that if Boehner or the House are sanctioned for bringing a meritless claim, it will be paid for by our tax dollars. The upside though is that it will likely deter future politically motivated lawsuits by Boehner and the House GOP—at least until Hillary Clinton is president.

Now, if the Boehner lawsuit ends up not being filed, the reason may just be that Boehner’s lawyers’ feared being personally sanctioned under Rule 11. If that happens, then Rule 11 will have worked the way Congress intended when they enacted it: to reduce the number of frivolous lawsuits.