Why would you say that?
Posted on 07/08/2014 3:34:45 AM PDT by Moseley
John Boehner’s plan, in which he proposes to sue President Barack Obama for violating the Constitutional role of the presidency, is important and brilliant. I am an attorney, with a keen interest in both politics and law. I have read and studied the U.S. Supreme Court precedents in question.
Pundits with incorrect analyses make three wrong objections: (1) Congress does not have legal “standing” to be the plaintiff to bring a successful lawsuit. (2) The Courts are reluctant to get involved in disputes between Congress and the Executive Branch. (3) Congress has other tools and Boehner is off-base using a lawsuit instead of direct powers of Congress.
Speaker of the U.S. House of Representatives John Boehner has announced that he will bring a resolution up for a vote to authorize a lawsuit by the U.S. House challenging recent presidential actions. It appears that this will authorize the House to act alone, and the resolution does not need the agreement of the Democrat-controlled U.S. Senate.
Boehner has not given specific details of his plans yet. But that has not stopped pundits from slamming Boehner for his proposal.
First, it is true that a plaintiff in a lawsuit must have “standing” especially in the narrow requirements of Federal courts. That is, a plaintiff must have suffered an injury from the acts or omissions complained of which is more particular to the plaintiff than the general effect on society as a whole. Just because Congress passed a law does not give Congress the necessary “standing.”
But even the dumbest lawyer in America knows -- even a Speaker of the House -- can figure out, that all you have to do is add more plaintiffs to the lawsuit.
(Excerpt) Read more at americanthinker.com ...
Presumably, the lawyers assisting Boehner will search out people, business, or non-profit organizations that have been injured by each and every one of the president’s actions that the lawsuit challenges. Plaintiffs will be added who have standing. Problem solved.
Second, it is absolutely – wildly – false that Federal courts are reluctant to decide disputes between the U.S. Congress and the Executive branch. What the pundits are stumbling over is the “political question doctrine.” But this involves the substance of the question, not the identity of the plaintiff and defendant.
Certain subjects do not lend themselves to judicial review, because they are “political questions.” This means that the U.S. Constitution clearly assigns the decision to one of the other Branches or there are no manageable standards that the Courts could apply other than raw political opinions.
So far it’s just a plan. Wake me when Boehner actually does something for a change.
Don’t call it brilliant until something actually happens. Ppl rightly do not trust Boehner.
he is trying to drag this out until Obama’s end of term.
Why would you say that?
The meat and potatoes IMO :
“...There are two types of legitimate pre-Obama executive orders:
(a) A law passed by Congress specifically delegates the power to the president to decide something. For example, if a law empowers and requires the president to certify whether a nation is aiding terrorism, the president may exercise that legal authority in the form of an executive order. But the authority is created by the law Congress enacted.
(b) The boss issues an order to those who work under him: Thursday will be national watermelon day. Employees should not drink coffee near their computers. IRS employees shall make back-up copies of emails. Keep your hands off the interns. That sort of thing.
But Boehner’s lawsuit seeks to challenge Obama’s executive orders which fundamentally conflict with laws passed by Congress. Whether an executive order is legally valid is something courts will have no hesitation deciding....”
< snip >
For example, the U.S. Supreme Court slapped down presidential overreach by Democratic President Harry Truman in Sheet & Tube Co. et al. v. Sawyer, 343 U.S. 579 (1952). During the Korean War, Truman tried to seize steel factories to keep them running during a strike. Truman claimed the legal authority by greatly stretching and twisting the terms of the Tart-Hartley Act (concerning labor disputes) and asserting a military emergency as Commander in Chief to maintain production of critical munitions. Truman confidently predicted that the U.S. Supreme Court would agree with him, since earlier Truman had seized 28 other industrial properties and gotten away with it. The U.S. Supreme Court ruled that the president had exceeded his authority under the Constitution, particularly because Congress disagreed with his actions.
In Powell v McCormack, 395 U.S. 486 (1969), the Court rejected a claim that the case ought to be dismissed as a political question. The case involved the refusal of the House of Representatives to seat Adam Clayton Powell. The Court concluded that the decision was not committed by the Constitution to the House. Since the refusal to seat Powell was based on acts prior to Powell’s election, the Court ordered Powell seated in Congress.
Another good example is INS v. Chadha, 462 U.S. 919 (1983), finding a legislative veto of Executive branch action unconstitutional. Congress was passing laws which specifically enabled Congress to veto any regulation created under that law. The U.S. Supreme Court found this violated the structure or architecture of the Constitutional system.
“Boehner has not given specific details of his plans yet...”
I’m sure that this “lawsuit” will probably be initiated AFTER Obama leaves office (if he does) simply because in that manner the GOP RINOs would not violate their credo “go along to get along”.
You can fully expect this scenario to happen simply because it’s “all show and no blow” as we have seen many times before.
I just think of it like the RINOs being the big bad wolf in the 3 little piggies. They are going to “huff and puff and huff and puff....” until Obama’s term is over.
We need something done IMMEDIATELY while we are being invaded from the south with the full blessing of the NAZI liberals in Congress and our government.
Many, many years ago I staunchly believed that we would never be invaded by any military force but believed that we would be overthrown by our own government in Washington D.C..
My prediction has come true and to make things worse the invaders did not even have to fire a shot.
If we can’t impeach this guy we need to at least neutralize him somehow or other. My own view is that the impeachment process died in 1999.
Interesting analysis. But I didn’t even have to wait to see the expected “I hate Boehner” comments, the “it’ll never work,” “why bother,” etc. Sometimes I think we are our own worst enemies.
Putting “brilliant” in the same sentence as “Boehner” seems fundamentally wrong...
Finally ! Let’s have a serious discussion about this case !
The cause of action with the POTUS as defendant is less likely to succeed IMHO than with the SCOTUS as defendant. Let me explain.
The Executive here says he is using his enumerated powers while the Congress says that he is stealing theirs. Regardless, either branch is trying to assert a Constitutional right. Along comes the Standing and Ripeness rules which courts use to wipe the docket clear without determining anything. Hence, everyone is parrotting that Boehner has no case becasue standing prevents the cause of action. Standing has a great tradition BUT IT IS NOT IN THE CONSTITUTION!!!!! IT IS NOT IN THE US CODE!!!! The controversy is NOT about high crimes and misdemeanors, it’s about the “faithfully execute” clause.
Ergo, the SCOTUS, via a court rule, is depriving the Congress of its enumerated power and letting the POTUS get away with it. Choosing sides via a device for courts to get easy disposition. Standing doctrine is depriving the people, via Congress, of its Constitutional right to have the Executive “faithfully execute”.
I do not suggest we do away with standing or ripeness in any matter save a case where the plaintiff is Congress and defendant is POTUS or vice versa. I do not suggest the SCOTUS is a properly named defendant in ANY other matter than this one. But, it is clear on its face that the SCOTUS has no right to deprive a co-equal branch of govt. of its enumerated powers via a court rule, codified only in case law it itself issued down over the years. Further, for the SCOTUS to tell Congress to impeach, that the standing rule is so important that you must nullify a popular election and use your Death Star power is absurd to just say it out loud.
Hmm: “First, it is true that a plaintiff in a lawsuit must have “standing” especially in the narrow requirements of Federal courts. That is, a plaintiff must have suffered an injury from the acts or omissions complained of which is more particular to the plaintiff than the general effect on society as a whole.”
Calling all rape, child molestation victims of Obama dreamers WH weren’t deported after Obama’s order not to deport them in 2012
Exactly. The Republic will lie in ruins before this has any effect if it does at all.
I’m no lawyer but how long does the average lawsuit take to be resolved.
Now that obama has "OJ'd" the legal system to the point where he can get away with murder and impeachment obviously isn't going to get past Reid's Senate, then Boner might as well try a Fred Goldman style work around and sue.
With both OJ and obama we know who's guilty, but only one's fate is still in our hands.
Interesting. Thanks for your analysis.
$top funding $ocialists. Check$ and Balances$.
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