Could Boehner Enforce Lawsuit Against Obama?

John Boehner, as Republican Speaker of the U.S. House of Representatives, proposes to file a lawsuit challenging President Barack Obama’s violations of the U.S. Constitution by (a) exceeding his authority as president and (b) modifying and ignoring laws passed by Congress.

Doubts have been expressed as to whether a successful decision by the Courts against the Obama administration can be enforced. Attorney Jonathan Levin presents an excellent analysis and historical review in “John Boehner and John Roberts, Meet John Marshall”. Many other commentators, less thoughtfully than Levin, have scoffed at Boehner’s lawsuit by pointing to Obama’s willingness to disobey the law already. Why would Obama obey the Court? (Most other reactions were that people just don’t like Boehner and don’t want to give him any credit for anything.)

Jonathan Levin reviews the landmark case of Marbury v. Madison in remarkably similar political circumstances at the birth of our nation. In Chief Justice John Marshall’s decision, the U.S. Supreme Court tap-danced around various issues precisely because the Court doubted that the president would obey the Court’s decision. It would weaken the Court politically and in public perception to issue an order that was conspicuously ignored. So the Court sought to build its authority little by little while avoiding direct confrontation with President Jefferson.

Meanwhile, on July 10, John Boehner once again failed to clarify the details of his plan in the House Speaker’s Weekly Briefing(starting at about time-stamp 7:44). The Speaker has drawn lots of varying criticism because his proposal lacks specifics and remains largely unexplained. Boehner waved off a question by promising that the full plan would be revealed next week or the week after. 

So, this leaves the imagination to decide whether it will be a well-designed lawsuit guided by wise and experienced lawyers (wise and smart not being the same thing) or a poor, mushy, badly-done political stunt, which Republicans will fumble. The latter would be more typical of everything else Speaker Boehner has done during the Obama administration. (In the title of my own article July 8, I provocatively called his lawsuit brilliant. I didn’t say that Boehner is brilliant.)

So to move our understanding forward, are John Boehner and Jon Moseley right that the lawsuit can succeed? Or are Jonathan Levin and most pundits right that a success in the U.S. Supreme Court would be pointless because it could not be enforced against a lawless Obama Administration?

Well, you know the answer, if you ask a lawyer:  “It depends”.  But it really does depend.

Suppose you run a coal-fired electricity generation power plant. Barack Obama has exceeded his authority under the law to restrict carbon dioxide emissions. To complete Obama’s overreach, the Obama administration needs to enforce that regulatory overreach against the power plant. Indeed, the administration must ultimately resort to the Federal courts to enforce Obama’s policies.  

If the U.S. Supreme Court rules that Obama exceeded his authority, then the directives and regulations imposed on your power plant are null and void. Obama cannot enforce his overreach against you. He cannot enlist the courts or any law enforcement. Therefore, a court decision would be automatically self-enforcing.

In many other actions, there are other parties involved in the administration’s violation. Suppose the administration illegally spends money not authorized by law. “Taxpayer standing” has often been recognized by the courts. That has been used to stop government funds from being spent to promote a particular religion. So a Court could strike down funds improperly spent. A court can order the recipient of the funds to cease and desist.

Similarly, companies or organizations that rely upon an Obama administration initiatives ruled invalid face unacceptable legal risk. A nongovernmental business or organization often cannot afford to take the risk. Boards of Directors face a duty to their shareholders, for example, which could put their own necks in the noose, especially under the Dodd-Frank law.

Nevertheless, the pessimism about the Executive Branch obeying Court decisions is unnecessary. On July 3, the U.S. Supreme Court decided that Obama’s recess appointments were invalid, in National Labor Relations Board vs. Noel Canning. This precedent is exactly the type of order to the Executive branch which Boehner’s skeptics claim can’t be successful. For the Court’s decision to be implemented, those voting members of the NLRB have to clear out their desks and leave the building. If the NLRB case is enforceable against the administration, everything else Boehner’s lawsuit would challenge would be the same or less problematic.

Political pundits and lawyers also seem to have completely forgotten the once-famous uproar over “impoundment.”  To try to balance the budget, President Nixon “impounded” some of the Federal funds appropriated by Congress. That is, Congress authorized spending. Nixon refused to spend all the money appropriated by Congress. Nixon asserted the right -- and that claim dates back to President Thomas Jefferson -- to spend some but not all of the funds voted by Congress.

The U.S. Supreme Court, in Train v. City of New York, 420 U.S. 35 (1975), ruled that the president must spend all the money that Congress appropriates for each budget category. That is, the U.S. Supreme Court ordered the president to spend Federal funds that the president did not want to spend. There was no hesitation and no problem with the courts having the authority to enforce its decision against the president. (I remember when I worked in the Executive Office of OBEMLA in the U.S. Department of Education, my boss was very worried about a mistake that might leave some grant funds unallocated as the end of the fiscal year approached.)

But all this presupposes that Boehner lines up wise and smart lawyers (two very different things) to do a vastly better job than anything Boehner has done before, at least since Obama took office. This is more than just speculation about what might happen or not, because the final lawsuit hasn’t been written yet. Those working on the idea right now can either ruin the opportunity or do it right. 

So it can be very important for thinking Americans active in politics to puzzle through what would work and what wouldn’t. There is still time to get it right and avoid getting it wrong. Once the lawsuit is filed, if pinhead inside-the-beltway advisers have written a bad lawsuit, it will fail. And that would blow up in Republicans’ faces politically. If Boehner fumbles this project like many others over the past five years, it will ruin the possibility that anyone else in the future could do it right. Republicans are paralyzed over impeaching lawless Attorney General Eric Holder, for example, because the Clinton impeachment hurt politically.

John Boehner, as Republican Speaker of the U.S. House of Representatives, proposes to file a lawsuit challenging President Barack Obama’s violations of the U.S. Constitution by (a) exceeding his authority as president and (b) modifying and ignoring laws passed by Congress.

Doubts have been expressed as to whether a successful decision by the Courts against the Obama administration can be enforced. Attorney Jonathan Levin presents an excellent analysis and historical review in “John Boehner and John Roberts, Meet John Marshall”. Many other commentators, less thoughtfully than Levin, have scoffed at Boehner’s lawsuit by pointing to Obama’s willingness to disobey the law already. Why would Obama obey the Court? (Most other reactions were that people just don’t like Boehner and don’t want to give him any credit for anything.)

Jonathan Levin reviews the landmark case of Marbury v. Madison in remarkably similar political circumstances at the birth of our nation. In Chief Justice John Marshall’s decision, the U.S. Supreme Court tap-danced around various issues precisely because the Court doubted that the president would obey the Court’s decision. It would weaken the Court politically and in public perception to issue an order that was conspicuously ignored. So the Court sought to build its authority little by little while avoiding direct confrontation with President Jefferson.

Meanwhile, on July 10, John Boehner once again failed to clarify the details of his plan in the House Speaker’s Weekly Briefing(starting at about time-stamp 7:44). The Speaker has drawn lots of varying criticism because his proposal lacks specifics and remains largely unexplained. Boehner waved off a question by promising that the full plan would be revealed next week or the week after. 

So, this leaves the imagination to decide whether it will be a well-designed lawsuit guided by wise and experienced lawyers (wise and smart not being the same thing) or a poor, mushy, badly-done political stunt, which Republicans will fumble. The latter would be more typical of everything else Speaker Boehner has done during the Obama administration. (In the title of my own article July 8, I provocatively called his lawsuit brilliant. I didn’t say that Boehner is brilliant.)

So to move our understanding forward, are John Boehner and Jon Moseley right that the lawsuit can succeed? Or are Jonathan Levin and most pundits right that a success in the U.S. Supreme Court would be pointless because it could not be enforced against a lawless Obama Administration?

Well, you know the answer, if you ask a lawyer:  “It depends”.  But it really does depend.

Suppose you run a coal-fired electricity generation power plant. Barack Obama has exceeded his authority under the law to restrict carbon dioxide emissions. To complete Obama’s overreach, the Obama administration needs to enforce that regulatory overreach against the power plant. Indeed, the administration must ultimately resort to the Federal courts to enforce Obama’s policies.  

If the U.S. Supreme Court rules that Obama exceeded his authority, then the directives and regulations imposed on your power plant are null and void. Obama cannot enforce his overreach against you. He cannot enlist the courts or any law enforcement. Therefore, a court decision would be automatically self-enforcing.

In many other actions, there are other parties involved in the administration’s violation. Suppose the administration illegally spends money not authorized by law. “Taxpayer standing” has often been recognized by the courts. That has been used to stop government funds from being spent to promote a particular religion. So a Court could strike down funds improperly spent. A court can order the recipient of the funds to cease and desist.

Similarly, companies or organizations that rely upon an Obama administration initiatives ruled invalid face unacceptable legal risk. A nongovernmental business or organization often cannot afford to take the risk. Boards of Directors face a duty to their shareholders, for example, which could put their own necks in the noose, especially under the Dodd-Frank law.

Nevertheless, the pessimism about the Executive Branch obeying Court decisions is unnecessary. On July 3, the U.S. Supreme Court decided that Obama’s recess appointments were invalid, in National Labor Relations Board vs. Noel Canning. This precedent is exactly the type of order to the Executive branch which Boehner’s skeptics claim can’t be successful. For the Court’s decision to be implemented, those voting members of the NLRB have to clear out their desks and leave the building. If the NLRB case is enforceable against the administration, everything else Boehner’s lawsuit would challenge would be the same or less problematic.

Political pundits and lawyers also seem to have completely forgotten the once-famous uproar over “impoundment.”  To try to balance the budget, President Nixon “impounded” some of the Federal funds appropriated by Congress. That is, Congress authorized spending. Nixon refused to spend all the money appropriated by Congress. Nixon asserted the right -- and that claim dates back to President Thomas Jefferson -- to spend some but not all of the funds voted by Congress.

The U.S. Supreme Court, in Train v. City of New York, 420 U.S. 35 (1975), ruled that the president must spend all the money that Congress appropriates for each budget category. That is, the U.S. Supreme Court ordered the president to spend Federal funds that the president did not want to spend. There was no hesitation and no problem with the courts having the authority to enforce its decision against the president. (I remember when I worked in the Executive Office of OBEMLA in the U.S. Department of Education, my boss was very worried about a mistake that might leave some grant funds unallocated as the end of the fiscal year approached.)

But all this presupposes that Boehner lines up wise and smart lawyers (two very different things) to do a vastly better job than anything Boehner has done before, at least since Obama took office. This is more than just speculation about what might happen or not, because the final lawsuit hasn’t been written yet. Those working on the idea right now can either ruin the opportunity or do it right. 

So it can be very important for thinking Americans active in politics to puzzle through what would work and what wouldn’t. There is still time to get it right and avoid getting it wrong. Once the lawsuit is filed, if pinhead inside-the-beltway advisers have written a bad lawsuit, it will fail. And that would blow up in Republicans’ faces politically. If Boehner fumbles this project like many others over the past five years, it will ruin the possibility that anyone else in the future could do it right. Republicans are paralyzed over impeaching lawless Attorney General Eric Holder, for example, because the Clinton impeachment hurt politically.