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Is Congress the Right Party to Sue Obama?

The judiciary is going to have to play referee in the ongoing dispute between Republican Congressional leadership and the president, although not everyone is sold on the motive, method or likelihood that the case will yield any meaningful results for the House.

U.S. House of Representatives Speaker John Boehner is planning to sue President Barack Obama over what he is calling an “end-around on the American people” by excessive use of executive power. Reportedly, the president has responded with criticism of Boehner for not being able to effectively get legislation passed and essentially dismissed the upcoming lawsuit as a political gimmick.

UCLA Law School Constitutional Law professor Adam Winkler would not go as far as speculating on the Speaker’s motive, but he did acknowledge this “wouldn’t be the first lawsuit used for political purposes.” Winkler did share his thoughts about how successful he expects Boehner’s case to be: “I think this lawsuit is going nowhere fast.”

Winkler said history is not on the Speaker’s side, and to his knowledge, the Supreme Court in 200 years of history has never granted Congress standing in a case like this. In fact, he said there are a number of cases that serve as direct evidence the Congress would not be able to get things to progress. Recently, the Washington, D.C. federal district court kicked a lawsuit regarding excessive use of executive power with respect to military force.

In cases of egregious abuse of presidential overreach, he said a more likely candidate to bring a successful suit would be an “interested party” that would be able to show specific damages from the president’s policies. “There’s no specific injury to them, except that they don’t like the president,” he said.

In a June 25 memo from Boehner to House colleagues, he laid out his rationale for legal action.

“On one matter after another during his presidency, President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce – at times even boasting about his willingness to do it, as if daring the America people to stop him,” according to the memo, posted by the New York Times and other outlets. Further, he states: “On matters ranging from health care and energy to foreign policy and education, President Obama has repeatedly run an end-around on the American people and their elected legislators, straining the boundaries of the solemn oath he took on Inauguration Day.”

A day later, the Speaker touted a Supreme Court ruling that Obama’s recess appointments to the National Labor Relations Board were invalid and is “a victory for the Constitution, and against President Obama’s aggressive overreach,” according to information in a statement.

His strategy going forward, the memo reads, is to bring legislation to the floor sometime in the near future that would authorize the House of Representatives, through the General Counsel and under the direction of the Bipartisan Legal Advisory Group, to “compel the president to follow his oath of office and faithfully execute the laws of our country.”

It is unclear exactly what the parameters of the lawsuit would be, but Winkler said it is ironic that a number of instances where the president has taken executive action in place of legislation are with respect to policy items supported by many House Republicans, like delaying portions of the controversial healthcare legislation.

Considering how difficult the doctrine of standing will be to overcome, Winkler added there is another remedy Congress has when it feels the president has acted improperly- impeachment. However, he said that’s an unlikely scenario considering it probably “won’t be successful.”

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