September 2014: A Lawyer’s Guide to Suing the President

Washington Watch | September 2014
By Bruce Moyer

On July 30, the House of Representatives adopted a resolution (H. Res. 676) that authorizes the speaker of the House to file a lawsuit on behalf of the House against the President and other administration officials for failing “to act in a manner consistent with that official’s duties under the Constitution and laws of the United States.” The lawsuit, filed in federal court, focuses on the Obama administration’s implementation of the provisions of the 2010 Patient Protection and Affordable Care Act and related laws. The lawsuit is expected to be filed this fall, at some point before the November mid-term elections.

The resolution was adopted 225-201, largely along party lines. The initiation of the lawsuit carries broad political overtones, and has been called everything from a necessary “defense of the Constitution” to “a political stunt.” Let’s scrape away the political invective however, and take a closer “lawyer’s look” at the underlying litigation.

What’s the lawsuit all about?
Although the exact particulars of the lawsuit are not spelled out in the resolution, discussions have focused on the allegation that the Obama administration impermissibly delayed the implementation of some parts of the Affordable Care Act—particularly its mandate on employers who do not provide health care coverage, which was supposed to take effect this year and requires employers with 50 or more full-time equivalent employees to offer affordable health coverage or pay a penalty. (The Obama administration has twice delayed the mandate: last July it was pushed to 2015; in February, it was pushed again to 2016 for businesses with 50–99 full-time workers.) The lawsuit also falls amid the broader concern among some scholars and politicians that the balance of power between the branches has noticeably shifted in favor of a dominant executive branch, and that lawsuits like this are a necessary and permissible way to restore Constitutional balance.

Is the Senate involved in the lawsuit?
No, only the House of Representatives is bringing this suit.

Who will represent the parties?
Speaker John Boehner will be represented by the Office of the General Counsel of the House of Representatives, with assistance from outside counsel and experts—likely to include David Rivkin, partner at Baker Hostetler LLP, and Elizabeth Foley, constitutional law professor at Florida International University College of Law, who have been involved in crafting the legal direction of the lawsuit. The President will be defended by the Department of Justice.

Haven’t Presidents been sued before?
There have been other lawsuits against Presidents by individual members of Congress and groups of members in the past, but they have often failed. Several members of Congress sued President Clinton over the line-item veto act (Raines v. Byrd), and other members sued Clinton over a dispute involving an executive order establishing environmental protection for certain rivers. In 2011, Rep. Dennis Kucinich (D-Ohio) sued President Obama to challenge his authority to unleash a military operation in Libya, and earlier this year, Sen. Ron Johnson (R-Wisc.) sued over the health care law's effect on his staff. All lost.

Why haven’t members of Congress prevailed?
Judges have been wary of getting involved in direct disputes between the legislative and executive branches over the constitutionality of their actions. Standing has been the consistent judicial rationale for dismissing lawsuits by members of Congress against the President, finding the Congressional plaintiffs have been able to sufficiently prove they suffered a “concrete and particularized” injury to a “legally protected interest.” In Raines v. Byrd, Chief Justice William Rehnquist, writing for a 7-2 Supreme Court majority, said: "Our standing inquiry has always been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional."

So what makes this new lawsuit different?
This is the first time that either the House or Senate as an institution has brought a lawsuit against a President over enforcement of the law. Boehner's team is advancing a fresh argument, saying the institution of Congress itself is harmed by the President failing to follow the law.

Is this a winning argument?
Critics even within the Republican Party have questioned the inconsistency of an attack on the implementation of a law by a legislative chamber that has sought to repeal the same law more than 50 times. Proponents say that’s not the point; the President exceeded his authority by delaying the mandate without the permission of Congress, and as such, he is not faithfully executing the law.

Is suing the President a tactical warm-up for impeachment?
For the President’s harshest critics, both outcomes—winning or losing the lawsuit—may reinforce their pursuit of impeachment. Additionally, the public profile of the suit could lead to public support for impeachment as a constitutional grievance—energizing both parties to encourage their bases to vote in the upcoming mid-term elections.

Bruce Moyer is government relations counsel for the FBA. © 2014 Bruce Moyer. All rights reserved.

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