Boehner’s Lawsuit Against Obama Is a Loser Because of the American Conception of Presidential Power

Eric Posner weighs in.
July 11 2014 12:46 PM

Boehner’s Lawsuit Against Obama Is a Loser

Because of the American conception of presidential power.

John Boehner.
John Boehner should sue the founders, not President Obama.

Photo by Brendan Smialowski/AFP/Getty Images

House Speaker John Boehner wants the House of Representatives to sue President Obama for overstepping the limits of executive authority. Can he do this? Will he win? Does it matter? Yes, he can do it, but no, he won’t win. And no, his lawsuit doesn’t matter, but that in itself tells us a lot about presidential power.

Boehner initially was vague about which of the president’s actions he planned to challenge, but Thursday he released a bill that targeted the president’s failure to enforce a few provisions of Obamacare—for example, the employer mandate, which was delayed until 2015 because more time was needed for businesses to prepare for it. It might seem strange that a Republican would want to sue President Obama for giving businesses a break, but the Obamacare complaint stands in for a larger argument that the president disregards his constitutional obligations. As Boehner wrote in an op-ed for CNN:

In the end, 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 when it comes to a range of issues, including his health care law, energy regulations, foreign policy and education.

Obama’s critics argue that, in addition to Obamacare, the president has refused to enforce the immigration laws against a large group of aliens who arrived in this country as children, and in this way unilaterally implemented a piece of legislation—the DREAM Act—that died in Congress. He has issued waivers to states freeing them from compliance with the test score requirements of No Child Left Behind. He released prisoners from Guantánamo Bay as part of a prisoner swap without giving Congress the statutorily prescribed 30-day notice. He refused to enforce federal drug laws against some users of marijuana in states that have legalized marijuana. He refused to defend the Defense of Marriage Act before the Supreme Court. He used military force in Libya in defiance of the War Powers Act. He has ordered the assassination of American citizens abroad, through drone killings, without granting them due process.

To bring a lawsuit, however, one needs more than general complaints about the action of another person. Any litigant, including Boehner, must satisfy numerous legal requirements and, above all, be able to point to a law that the defendant violated. A court will almost certainly dismiss any lawsuit of the sort Boehner intends because the House of Representatives lacks “standing” to bring a suit—meaning that it has not suffered a concrete injury as a result of Obama’s actions.

But standing aside, the most interesting question is whether Boehner’s legal claims could have any merit. Boehner argues that Obama violated two clauses of the Constitution—one that requires him to take an oath to “protect and defend the Constitution,” and another that requires him to “take Care that the Laws be faithfully executed.”

The nub of the argument lies in the idea of faithful execution of the law, and this is where the president is most vulnerable. Immigration law forbids foreigners to enter and settle in this country without authorization based on criteria laid out in statutes. The president tried to persuade Congress to amend this law to carve out an exception for a young and sympathetic group of undocumented immigrants. Congress refused. The president then decided to stop enforcing the law against this same group of people—in this way implementing the policy that Congress refused to consent to. Isn’t this a failure to “take care that the laws be faithfully executed”?



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