House Republicans plan to sue Barack Obama over illegal executive actions

The House of Representatives is getting pretty tired of President Barack Obama going around the Constitution to enact laws through executive and regulatory fiat as well as ignoring laws passed by Congress. Roll Call reports that Speaker John Boehner (R-OH) is preparing a lawsuit against the White House over executive overreach:

The lawsuit could set up a significant test of constitutional checks and balances, with the legislative branch suing the executive branch for ignoring its mandates, and the judiciary branch deciding the outcome.

Boehner told the House Republican Conference during a closed-door meeting Tuesday morning that he has been consulting with legal scholars and plans to unveil his next steps this week or next, according to sources in the room.
Boehner’s legal theory is based on work by Washington, D.C., attorney David Rivkin of Baker Hostetler LLP and Elizabeth Price Foley, a professor of law at Florida International University College of Law.

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.

The potential remedies the legislative branch has to deal with executive overreach are limited, and not all of them are politically viable.

The House could try to limit funding with stipulations or prohibitions on funds passed in appropriations bills, but the Senate would have to sign off. Even if Republicans won back the upper chamber this fall, President Obama could still veto them, and it’s unlikely that the votes will exist to override that action. There’s also no guarantee that the administration would act in accordance with the law anyway.

The other option, of course, is impeachment, but Republicans don’t want to go there for fear of backlash from voters. What’s more, logistically, the Senate wouldn’t vote to remove the president, which requires a two-thirds majority. That would be virtually impossible, regardless of what happens in November.

Though it deals with the often unpredictable federal judiciary, a lawsuit may be the only viable recourse that the House has at its disposal.

Now, some pundits have opined that House Republicans can’t complain that much about the actions the White House and the administration have taken to implement President Obama’s agenda, which, they say, is a consequence of congressional gridlock. But that’s not a serious response to a constitutional crisis.

Sure, there is gridlock in Congress, making it difficult for either side to get what they want, but that’s a feature of our system, not a bug. The three branches that make up the federal government are equal and serve as a check on each other.

Yeah, President Obama may have been reelected in 2012, but voters also chose Republicans to control the House. And what we have is a White House and administration that would rather trash the Constitution than work with a co-equal branch of government in any real, meaningful way.

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