"You know the constitution makes it clear that the president’s job is to faithfully execute the laws and in my view the President has not faithfully executed the laws," Boehner said at a news conference on Capitol Hill....
"This is about defending the institution in which we serve. If you look back over the past 235 years of our history there's been movement between the inherent powers of the executive branch vs the inherent powers of the legislative branch and what we've seen clearly over the past 5 years is an effort to erode the power of the legislative branch"...
June 25, 2014
Speaker John Boehner says he's planning some sort of lawsuit against Obama over his use of executive action.
It's hard to picture this as a lawsuit (other than a lawsuit as a form of political expression):
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Idiot. The appropriate action is impeachment, but you can't impeach a black Zero, so we'll get a bunch of nonsense accomplishing nothing, but maybe making it look like doing something.
The ultimate affirmative action; you cannot impeach.
This will be shelved right next to the contempt citations for Lois Lerner, and Eric Holder.
Zzzzzzz...
Unless Judge Sirica is available.
Where are today's Hunter Thompsons and Sam Ervins?
Glenn R has written about this. The Standing issue. When the POTUS takes unlawful actions by doing something, there are often clear victims with standing to sue. However, when the POTUS fails to ensure that laws are faithfully executed, the harm and victim class is diffused. The one entity, cleared harmed by the lack of execution is the Congress that passed the law being ignored. Hence the potential suit
The most troublesome thing Obama has done is to unilaterally suspend the insurance mandate. The law doesn't allow for that.
If Presidents are allowed to do that, then that means any President can choose to make taxes optional -- including *selectively* optional. So, for example, a Republican President could simply decree that the estate tax doesn't need to be paid for the next four years. Or implement a flat tax by suspending the laws that apply higher tax rates to higher incomes.
Nobody would even have standing to sue over it.
Ann, you're the Constitutional expert here. Isn't impeachment the usual course for Congress to brush back an overreaching President?
Whether it is political, economic, cultural, social, or natural issues, everything is now settled in the courts. The reconciliation process is dictated with judicial decrees. So, addressing progressive executive control in the court is both appropriate and consistent with the "rule of law".
Tank,
"Idiot. The appropriate action is impeachment, but you can't impeach a black Zero, so we'll get a bunch of nonsense accomplishing nothing, but maybe making it look like doing something.
The ultimate affirmative action; you cannot impeach."
ROTFLMAO!!!!
STOP PLAYING THE VICTIM!!!!
Yeah, we've gotta suffer two more years of this guy in office.
Just two more years.
I expect something really radical before he leaves though, and something we will regret for a long time to come. Like the Pardon of millions of illegals.
Tank:
Impeach, and then what? Reid will never remove the Obama which laid the golden egg. Obama will never resign. The press will never demand his resignation. Redistributive change has been good for the people who matter.
Could Obama sue Boehner to stop the investigation?
"We've seen clearly over the past 5 years is an effort to erode the power of the legislative branch"…
A body with a 14% approval rating,...
The bureaucracy is eating democracy, and the individual. The state power is growing and can no longer be limited. Everything is now about rent seeking. Economic and cultural paralysis is spreading. The US, politically and culturally, is in its decadence. Arguably this affects the whole world.
The lessons of history are grim.
The only question left is timing.
What I am most concerned with is that there are no vigorous barbarians anywhere to overthrow the rotting mess.
Professor, your views on this please?
The balance of power between the branches is only maintainable if each branch is jealous of its powers.
The real problem is that Congress loves to have its power eroded. That way it also gets to avoid blame. That's why they love the administrative state and why Presidents get to do whatever they want.
Revenant said...If Presidents are allowed to do that, then that means any President can choose to make taxes optional -- including *selectively* optional.
And All POTUS would have a defacto line item veto as well.
Professor Althouse I am a bit disappointed in what I presume is a dismissive attitude on your part relative to this issue.
I would have liked to hear you address seriously the theory being advanced by David Rivkin -- a very serious voice in conservative legal circles -- and as set forth in this WSJ editorial:
http://online.wsj.com/articles/the-standing-to-sue-obama-1402868887
I don't mind if you disagree; but I'd just like to hear you address the "standing" issue.
Boehner has a point.
Suing to make the point is pointless.
That CNN article isn't good. It doesn't mention David Rivkin or Elizabeth Price Foley, who in January advanced the theory that Congress does have standing to sue. Roll Call's coverage from yesterday is better
The Constitution in this country provides for lawsuits concerning important things like getting an undeserved D in contracts class, not for insignificant things like the President's asserting of plenary power over your life and health.
Sorry. I was in a rush putting this post up. I haven't seen the details on who the plaintiffs are supposed to be and what the particular injury is. From what's in the linked article, it's just a generality. Is there more?
If not, there's no standing. And it's ridiculous to complain about an aggrandized executive while demanding an aggrandized judiciary.
The House of Representatives v. the President would make for great theater; and if the Senate becomes GOP too, then it could have an actual effect that the SCOTUS could chose to rule on.
But then what are the damages? Imprisonment for contempt of court? RICCO Judgements against the lying bureaucrats?
Impeachment of the Presidential appointees might help short of impeaching the Godfather whose orders they carry out. Even the Pope excommunicates the Mafia these days.
Boehner spends more time fighting his base than fighting Obama. This is just noise.
From David Newhauser's post at Roll Call yesterday...
"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."
I wonder if that last bit about individual liberty is targeted at Justice Kennedy.
The argument that there is no private plaintiff isn't good.
Standing doctrine has requirements that don't yield on the ground that they can't be met.
Ironically, conservatives have built and maintained this doctrine.
If you don't like it, you're in the company of the staunchest judicial liberals, like William Brennan, and the polar opposite of Scalia.
The right tool here is the constitutional check, impeachment. Step up and do it, or just keep criticizing the President in the political arena.
Boehner's real problem is that his party only controls one house of Congress.
Since the US won in a suit over states enforcing Fed Law, Would it be possible for border states (specifically Texas and Arizona) to sue for non-enforcement of immigration law? There appears to be harm.
"Boehner's real problem is that his party only controls one house of Congress."
Professor -- the implication is that in our system of government, if there is divided control of the two chambers, the executive is a dictator. He has the armies; and how many divisions does Boehner have?
Of course, really it's all moot. The voting public is stupid and uninformed, and our system was not set up to protect a stupid and uninformed electorate from itself indefinitely.
The Justice Dept. will provide lawyers for both sides?
What kind of a show is this going to be?
He should wait til after the 2014 election to do this.
That WSJ editorial from June 15th is astoundingly badly written.
"I would have liked to hear you address seriously the theory being advanced by David Rivkin -- a very serious voice in conservative legal circles -- and as set forth in this WSJ editorial…"
Are you seriously asking me to seriously address the serious theory seriously advanced by the serious voice of the serious David Rivkin? Seriously?
A body with a 14% approval rating,..
The legislative branch derives its power from its approval rating? Most members individually got a higher percentage of the vote than the president. Silly Constitution.
Crack, it does not matter if the approval of the U.S. Congress is 0%. This is the United States of America, and there are constitutional limits on the power of the executive. People have bled for this and there are plenty of us still ready to do so. If you prefer a sub-Saharan African-style Big Man form of goverment, I am personally prepared to make repatriation a reality for you with a free airline ticket tomorrow. Just think, no more white oppression! Interested?
Leave crack alone.
If you keep complaining about how ludicrous it is to use a political approval poll of congress to somehow dictate how much power the executive branch will/could/should usurp, then crack will simply shift to his next non-sequitor as to why obama is correct: Spandex.
Do not say I did not warn you.
Ann Althouse,
"The right tool here is the constitutional check, impeachment. Step up and do it, or just keep criticizing the President in the political arena."
I dare ya! I DOUBLE DARE YA!
YOU HAVE BEEN PLAYED!!!
I don't understand how I'm not harmed when a Congress I helped elect passes laws that the President unilaterally fails to enforce or illegally modifies. It shouldn't matter whether a candidate i voted for won or lost. It shouldn't matter if I even voted for. As long as I'm a citizen it seems I should have standing.
Gosh, professor; I'm sorry you are having such a disagreeable day. Seriously.
The WSJ editorial was shorthand for your non-lawyer readers on the issue.
Here's Rivkin himself, with Elizabeth Price Foley at his blog (and later published by Politico):
http://davidbrivkin.com/can-obamas-legal-end-run-around-congress-be-stopped/
I'm curious whether your antipathy toaward Rivkin is related to his very moderated defense of DOMA leading up to the Windsor decision?
The Legislative Branch has been pretty weak and ineffective for quite a while now, predating Obama, that's for sure. It essentially rolled over after 9/11 and played dead, IMO.
If the DHS and or ICE releases an illegal immigrant into the country and that immigrant subsequently commits a crime, then the victim of that crime would seem to have standing in suing the government for failure to uphold the law.
When illegal immigrants turn them selves in to the border patrol, then the border patrol should put them on a plane - home!
Oso Negro,
"Crack, it does not matter if the approval of the U.S. Congress is 0%."
Oh, I know. I've just seen that "logic" work elsewhere and said "Fuck it." You never know.
"This is the United States of America, and there are constitutional limits on the power of the executive."
When it's not the one you picked - I know that, too. I'm an adult. Been around a while. Now's a good time to remember conservatives don't play the victim.
"People have bled for this and there are plenty of us still ready to do so."
May I suggest slitting your wrists? The long way, not across. That's The American Way.
"If you prefer a sub-Saharan African-style Big Man form of goverment, I am personally prepared to make repatriation a reality for you with a free airline ticket tomorrow."
No, we're merely going for a Racist-Free Environment, and don't mind a little cheating to get there.
"Just think, no more white oppression! Interested?"
As much as Dave Chappelle's trip to South Africa intrigues me, naw. See, conservatives have been telling me I have a "slave mentality," so the idea of freedom doesn't suit me well. Plus, being on the Democratic "plantation" means I don't have to work BUT WHITES DO so - as long as the Left has conservative oppression to fight - I can use my Republican know-how to point out likely targets, and thus, get more "free stuff."
Thanks for the offer, though, I never thought about whites sending me places:
That's a real "slave trader mentality" all right,...
I don't have an opinion on whether congress should have standing to sue in this case. However, if nobody has standing, then it is pretty clear that there is a problem with the current standing doctrine, and it should be reformulated.
He needs to be left in office as an object lesson for incompetence.
"Gosh, professor; I'm sorry you are having such a disagreeable day. Seriously."
I'm just fine. I'm just not pushed to take something seriously by someone's assertion that the person who is pushing it is "serious." I judge things on their substance. I'm very familiar with separation of powers, standing doctrine, and the scope of judicial review. These are subjects I have taught on the law school level for 30 years. I don't need cues about the expertise of the asserter of the theory. I am my own expert, first hand.
"The WSJ editorial was shorthand for your non-lawyer readers on the issue."
Shorthand or sleight-of-hand?
"Here's Rivkin himself, with Elizabeth Price Foley at his blog (and later published by Politico): http://davidbrivkin.com/can-obamas-legal-end-run-around-congress-be-stopped/"
Yes, I had already seen that. I'm not impressed, and I don't think conservatives should buy into that.
"I'm curious whether your antipathy toaward Rivkin is related to his very moderated defense of DOMA leading up to the Windsor decision?"
No, I didn't remember that and if I had, I wouldn't care.
The Crack Emcee said...
...we're merely going for a Racist-Free Environment, and don't mind a little cheating to get there.
If you want this country to be a Racist-Free Environment, then you taking him up on that one-way plane ticket would be a step in the right direction.
This lawsuit is dumb and impeachment is dumb.
The lawsuit will accomplish exactly nothing.
Impeachment would simply make the Republicans look like sore losers. "Look! They keep impeaching Democrat Presidents!"
In an alternate universe where Clinton was not impeached... "Look! The first President impeached in 150 years just happens to be the first black President. Hmmm..."
Could Republicans impeach Obama successfully? Yes, but only if he is clearly guilty of HIGH crimes with Nixon level of evidence. If he directed the IRS' actions, there must be emails that come directly from the President. It needs to be obvious and undeniable. Thus far, there is nothing that rises to that level.
Right now, impeachment is stupid.
Planning. Some sort. Lawsuit.
Obama is certainly quaking in his Guccis.
My theory is the West Wing TV show exaggerated the president's role in things. It was a paen to Bill Clinton- libruls loved the show and think that is how the country and world should function. The media was always in love wth Bill Clinton and they elevated coverage of the presidential office to ridiculous heights [not by neutral coverage mind you] but by reporting every day every minute every stinking event or comment a president attends or makes. That has continued with GW and with Obama - it has also led to our increasing dissatisfaction with the Imperial City as we suffer through one average prez [Clinton} and two below average prezes [Bush and Obama]. Our increased expectations of the office can not be met by such ordinary schlubs. We should push power back to the states and lower our expectations of the IMperial City or elect an excellent, highly capable president for a change.
That is the rub of our current so-called Beltway gridlock. I want smaller de-centralized govt while libs want to go all out with their West Wing fantasy.
Surfed said:
"He needs to be left in office as an object lesson for incompetence."
This is a very excellent point!
We should leave him in office for his entire 8 years [I think he is beginning to regret his position almost as much as we do] so we learn our lesson and never again elect an inexperienced, disengaged, credentialed but uninformed nobody as president.
The Crack Emcee said...
Tank,
"Idiot. The appropriate action is impeachment, but you can't impeach a black Zero, so we'll get a bunch of nonsense accomplishing nothing, but maybe making it look like doing something.
The ultimate affirmative action; you cannot impeach."
ROTFLMAO!!!!
STOP PLAYING THE VICTIM!!!!
LOL.
Regardless of any criticisms I have or negative views, the one thing you can be sure of is that I never think of myself as a victim.
I am grateful to have been born with brains and to have a good work effort. I started poor, and worked my way to, not rich, but richer than most. I've been remarkably successful, while still taking out time to golf, read, play guitar and ride horses.
I've almost always been a success, and always will. The times I've fallen down, I just worked harder until I got back to being successful.
Nope. I am a grateful SOB, and never think of myself as a victim.
Althouse:
"Boehner's real problem is that his party only controls one house of Congress."
Not so; his real real problem is that his actual allegiance is to The Party Of Government, Division R, but he poses as a Republican.
Ignorance is Bliss,
"If you want this country to be a Racist-Free Environment, then you taking him up on that one-way plane ticket would be a step in the right direction."
Yeah, I know, but - just like you - I'm FIGHTING it,...
The framers most certainly never contemplated the legislative branch instituting litigation against the executive branch to control executive misconduct. The appropriate, indeed the only constitutional remedy available, is impeachment.
Crack (12:07): "STOP PLAYING THE VICTIM!!!!"
Here's the resident black race-baiter telling someone else to stop playing the victim. Hypocrisy abides in the MC's cracked mind.
Assuming that you can get past the standing issue, this looks to me like an issue the Court would call "a political question" and decline to get involved. The House leadership would be rebuked by the third branch of government thereby giving the President a public relations win.
I suggest there is another way to do this. Each time the President "side steps" Congress, refuses to faithfully execute laws of his choice, or otherwise breaches his presidential oath -- the House can pass a resolution of censure. It doesn't need the Senate to concur, it would create/define the news cycle talking points, and as the number of these things mount would eat into the number of Democrats that are willing to go an record defending the President. At some point more "teethy" action could become possible.
I'll echo Tank; the proper action is impeachment. We've made a BIG mistake the last 200 years by not impeaching bad or corrupt officials.
@Ann:
as a hypothetical, suppose that Romney had won in 2012.
Suppose that Romney had done similar actions to those Obama has done. (Especially with choosing not to enforce portions of the Affordable Care Act. Or choosing to enforce different sections of the law with regard to illegal immigrants, while not enforcing sections of the latest Bank/Credit-Card-Reform act.)
Also assume that Nancy Pelosi (or some other prominent Dem) gained/retained control of the House of Reps.
Would that Speaker have standing to sue?
If we can't assume Dem control of the House, would the Senate Majority Leader have the same standing (or non-standing) to sue?
I'm not really familiar with the case law relating to standing. And I'm also not familiar with Rivkin's argument.
Is there a handy resource to what is lacking in Rivkin's argument, that I can consult if I wish to read him?
And now it turns out Lerner wanted to target a sitting Republican senator.
Posturing.
The remedy is impeachment, if you want a non-electoral remedy.
Seems to me the lawsuit has no chance.
Pure posturing. Do something useful instead.
If the Supreme Court can judge the acts of congress constitutional or unconstitutional (and don't forget the source of that power--the Supreme Court itself), I can't see any real reason why they can't do the same for the president.
The standing issue is a dodge, a distraction. If impeachment is congress' only remedy, then that is a failure of the Supreme Court to apply its own doctrine rationally.
Right. Impeach, or try. That's gonna work.
This POTUS has the skin-color defense. He'll never be impeached or tried. He does not care what happens after he dies, so he'll probably just golf from here on out.
Boehner's such a tool. Remember when we had real leaders in DC. I don't either.
As a practical matter it appears that if a President doesn't have the decency to adhere to his oath of office (to uphold the Constitution), and if his Party holds one house of Congress, there's no remedy.
I'd look for the piece-of-shit President penumbra in the Constitution.
"Are you seriously asking me to seriously address the serious theory seriously advanced by the serious voice of the serious David Rivkin? Seriously?"
Althouse goes in for the kill!
Thread-winner!!!!
The intermediate step is impeachment:
Of Susan Rice
Of Eric Holder
Of Douglas Shulman
if he would just lie the country into a quagmire....then just mebbe.
What am I missing here. Boehner says that he is going to throw some light on the Obama lawlessness by filing a harmless lawsuit. And everybody opposes him because it's only politics.
Such a lawsuit will indeed highlight the problem that King Obama says that when he cannot get laws he wants in Congress, then he will rule by himself as if Congress has been dissolved and sent home. The message is that this November's Senate elections are a big deal.
A lawless King ruling by decrees without consent from Congress is Treason.
"The intermediate step is impeachment:
Of Susan Rice
Of Eric Holder
Of Douglas Shulman"
Interesting. Let's start with the easy one.
Ann, you're the Constitutional expert here. Isn't impeachment the usual course for Congress to brush back an overreaching President?
Given that only one President (Andrew Johnson) has ever been impeached for it, we can conclude that either Presidents virtually never overstep their power (heh!) or else impeachment isn't the usual course for handling it.
The usual course for handling it is to (a) bitch and (b) remember it, so your guy can do the same stuff when the office changes hands.
Discovery.
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