The House of Representatives will take up a resolution before the August recess that would empower House Speaker John Boehner to file a lawsuit against President Obama. Speaker Boehner will be our special guest star at this year’s RNLA Republican Lawyer of the Year Reception tomorrow night.
The resolution empowers the Speaker to “initiate or intervene in one or more civil actions on behalf of the House of Representatives in a Federal court of competent jurisdiction to seek relief . . . and to seek appropriate ancillary relief, including injunctive relief, regarding the failure of the President . . . to act in a manner consistent with [his] duties under the Constitution and laws of the United States with respect to implementation of (including a failure to implement)” portions of Obamacare and the Health Care and Education Reconciliation Act.
The resolution would empower The Office of the General Counsel of the House of Representatives to represent the House in “any civil action initiated.”
At last week’s House Rules Committee hearing on the resolution, Florida International University law professor Elizabeth Price Foley argued that standing is clearly established under a four part test. First, the lawsuit must be explicitly authorized by a majority of the House. Second, the lawsuit should target the President’s suspension of an unambiguous law. Third, “the lawsuit should target presidential action that cannot be remedied by a simple repeal of the law or any other effective and proportional political remedies.” Lastly, the injury alleged should be “one that reasonably can be characterized as a nullification of legislative power.”
Even Jonathan Turley, liberal law professor at George Washington University, recognized the need for this action. “At some point this body has to take a stand and try to realign these branches. If it doesn’t I think this system is going to change in a very significant, and in my view, dangerous way.”
As Speaker Boehner said when he announced the lawsuit, “In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law. . . . That’s not the way our system of government was designed to work. No president should have the power to make laws on his or her own.”