Can Bachmann Really Sue ‘King’ Obama?

The congresswoman wants to stop the president from using executive orders to advance his agenda without Congress, but she’s backed down every other time she threatened to go to court.

Alex Wong/Getty ,Alex Wong

President Obama told the country Tuesday night that he is ready to take unilateral action on the economy, promising to enact a number of pension and minimum wage-related initiatives “with or without Congress.” Not if Michele Bachmann has anything to say about it. The Republican congresswoman from Minnesota, one-time primary presidential candidate and End Times enthusiast warned the president that he’ll face a lawsuit from the Congress if he decides to go through with such unilateral activity.

“He may think he is king, he may declare he’s a king, but that’s not what he is under the Constitution,” Bachmann said Tuesday. Rep. Steve King of Iowa had Bachmann’s back, arguing that Obama has repeatedly acted outside of the bounds of his constitutional authority. Not only should Congress bring Obama to court, King said, but the House should also consider a formal resolution “that lists all of [Obama’s] constitutional violations, or at least the clearest ones—there are very many, I don’t know if we’d ever get to all.”

This is not the first time Bachmann, who is in the midst of her fourth and final congressional term, has threatened to sue the president. Back in November, Obama went ahead and took administrative action to give insurance companies a one-year extension on plans that would have been canceled under the Affordable Care Act. Obama was effectively putting a Band-Aid on the reality that, as many conservatives were happy to point out, not everyone who liked their current insurance plans could keep them as the president promised. Still, because Obama made the move without consulting Congress, Bachmann and an alleged, yet unnamed, group of Republicans plotted to file suit.

“That’s the essence of lawlessness and now it’s our time to defend our prerogative,” Bachmann said at an event for the conservative think tank Heritage Foundation, in response to the president’s action. The lawsuit never materialized.

It’s easy to dismiss Bachmann’s threats as empty given, you know, her penchant for crazy talk. But she’s not the first member of Congress to consider suing the president, nor is she the first to try to sue Obama. In June 2011, Democratic Rep. Dennis Kucinich and nine other members of the House actually went through with a lawsuit against Obama for unilaterally continuing the U.S.’s military presence in Libya. They argued that, by acting without consulting Congress, Obama was violating the War Powers Resolution of 1973, which limits how much authority a president has to involve the U.S. into an armed conflict without congressional approval.

In a very informative article following the submission of Kucinich’s suit, Slate explained that the president can’t actually be sued for any action he takes as part of his job as chief executive. The reasoning here, as solidified by the 1982 Supreme Court decision in Nixon v. Fitzgerald, is that “subjecting the president, who routinely makes decisions that alter the fortunes of millions of citizens, to such lawsuits would cripple his ability to preside effectively and distract him from the job.”

The president can, however, be sued for personal actions made outside from his job. This distinction was made in 1997, when the Supreme Court rejected President Clinton’s attempt to postpone trial for sexual harassment allegations from Paula Jones, by arguing that the president is immune from being sued for personal acts as well as official ones.

Bachmann might consider the outcome of Kucinich’s lawsuit before moving forward with her own. In line with many of the attempted Congressional lawsuits against presidents before it, the Libya case was dismissed. Kucinich and his cohorts, the judge determined, lacked standing or, essentially, the right to sue because of their statuses as members of Congress.