Can you sue the president? Kucinich just did.

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June 16 2011 6:25 PM

Can You Sue the President?

Rep. Kucinich just did.

Dennis Kucinich. Click image to expand.
Dennis Kucinich

Rep. Dennis Kucinich and nine other House members filed a lawsuit Wednesday against President Obama. The president, they say, is violating the 1973 War Powers Resolution by continuing U.S. military operations in Libya without congressional authorization. Can anyone sue the president?

Not for what he does as chief executive. The 1982 Supreme Court decision Nixon v. Fitzgerald gave the president broad immunity against civil lawsuits for job-related actions. Here's the background: In 1968, A. Ernest Fitzgerald, a civilian analyst at the Air Force, warned Congress about the mounting costs of producing the Lockheed C-5A, a transport plane. Soon after, President Nixon ordered Fitzgerald dismissed, and Fitzgerald sued. Ultimately, a 5-4 split Court found in favor of Nixon, holding that the president "is entitled to absolute immunity from damages liability predicated on his official acts." The theory goes 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 court made a key distinction between presidential actions and personal ones, though, in its 1997 decision Clinton v. Jones. In 1994, Paula Jones sued President Clinton for allegedly sexually harassing her in 1991, while she was an Arkansas state employee and before Clinton won the presidential election. Clinton's lawyers argued that presidential immunity extended to unofficial acts, and that the trial should be postponed until Clinton left office. The court decided against Clinton, who ultimately paid Jones $850,000 to settle the suit. A somewhat similar lawsuit was brought against John F. Kennedy during his presidency. In 1962, Kennedy settled out of court with Mississippi State Sen. Hugh Lee Bailey, aka "the Donkey-Riding Senator," for injuries Bailey sustained in a 1960 traffic accident (involving Kennedy's driver but not Kennedy himself) that left the state senator unable to ride a donkey. Bailey had sought $250,000; Kennedy paid $17,500.

The Libya lawsuit probably won't go far. Historically, the courts have been reluctant to grant members of Congress standing in suits against the executive branch, on the basis of the separation of powers. Accordingly, in their court filing, Kucinich and company "acknowledge that standing of members has been curtailed in prior judicial opinions," but ask for an exception. In a similar case, then-Rep. Tom Campbell and 16 other members of Congress sued President Clinton in 1999 for violating the War Powers Resolution with respect to the war in Kosovo. A U.S. Court of Appeals dismissed the case for lack of standing, and the Supreme Court denied the plaintiffs' petition for certiorari.

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