The House of Representatives is not letting a lack of legal authority stand in the way of handing President Obama a political setback.
On July 30, the House voted to file a federal lawsuit against the president for allegedly exceeding the bounds of his constitutional power.
The resolution authorizes the House to “initiate litigation for actions by the President or other executive branch officials inconsistent with their duties under the Constitution of the United States.”
In a report that accompanied the vote, the Republican members of the House Rules Committee accuse the president of “executive overreach” in a series of policy areas, including the administration’s implementation of the Affordable Care Act, the president’s transfer of five prisoners held at Guantanamo Bay to the Taliban in return for the handover of Army Sergeant Bowe Bergdahl, and the administration’s ordering the Department of Homeland Security to defer action on deportation of certain children who enter the U.S. illegally.
The resolution passed by a vote of 225-201, with no Democrats voting for the measure and five Republicans voting against it.
Though one can debate the political motives of the resolution’s proponents, they likely will be unable to satisfy the prerequisites for filing a lawsuit in federal court.
The Supreme Court has ruled that members of Congress lack standing, which requires parties who seek to file a lawsuit in federal court to show that they have suffered a concrete injury. In that case, the court held that six members of Congress lacked a basis for alleging in a federal lawsuit that the law authorizing the line-item veto was unconstitutional. Raines v. Byrd, 521 U.S. 811 (1997).
In Raines, the court based its decision on a finding that the members of Congress did not have a sufficient personal stake in the dispute to file suit, and that other avenues for challenging the law existed. As Chief Justice William Rehnquist wrote for the majority,
We also note that our conclusion neither deprives Members of Congress of an adequate remedy (since they may repeal the Act or exempt appropriations bills from its reach), nor forecloses the Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act).
In the resolution that passed the House on July 30, the resolution’s proponents acknowledge the problem that a lack of standing presents. However, the majority leans on an analysis by several law processors, including Elizabeth Price Foley, a professor at Florida International University School of Law.
According to the majority, in Professor Foley’s analysis of the case law:
The House would have Article III standing if it (a) were acting as an institution rather than a small group of aggrieved members and (b) if it suffered an institutional injury in the sense that the President’s executive action caused Congress’ vote on a particular issue to be `nullified.’ In addition, Professor Foley stated that the courts will likely analyze whether `prudential factors’ bolster or weaken the case for granting congressional standing. These factors include: (a) whether the institution has explicit authorization to bring the lawsuit; (b) whether there has been a `benevolent suspension’ of law in which no private plaintiff has been harmed and in which case only Congress would have standing; and (c) whether the legislature has exhausted its legislative remedies against the executive.
Many experts disagree. Tara Grove, a law professor at William and Mary, told the Wall Street Journal, that she “would be very surprised” if the court grants standing. “We’re in uncharted waters, and I think any judicial court would want to avoid weighing in,” said Grove.
Thomas Mann, a congressional scholar at the Brookings Institution. noted that because the House isn’t actually harmed, a federal judge would be inclined to toss out the lawsuit. “I don’t see how [House Speaker John] Boehner, authorized by a vote of the House, could possibly get standing as an injured party under the court’s cases and controversies jurisdiction,” Mann told the Scripps Howard Foundation.
House Democrats forced a series of votes on related resolutions that opponents of the resolution hope will underscore what they charge is the partisan nature of the suit. The votes, which the Rules Committee defeated along party lines, would have required, among other things, the House’s general counsel to disclose how much is spent on the lawsuit each week, to prevent the hiring of any law firm that lobbies on implementation of the Affordable Care Act, and to require the House’s lawyers to explain the likelihood of success in the lawsuit or how they think they will overcome the legal obstacles presented by Supreme Court precedent.
For his part, President Obama, a former constitutional law scholar, dismissed the resolution as “a political stunt.”
“Every vote they’re taking like that means a vote they’re not taking to actually help you,” the president told an audience in Kansas City, Missouri. He went on to urge Republicans to “stop just hating all the time.”