HOW IT WORKS: What It Means When Congress Sues The President, Explained! Sort Of!

There has never been an instance of a legislative body suing a sitting President. So, the answer to the question, "How does it work for Congress to sue the President?" has been a resounding, "We have no idea."
Publish date:
August 15, 2014
politics, m-rated, M

What do you think when you hear "sue the President?" Maybe it's two thumbs up or two thumbs down, but it could just as easily be two shoulders up, shrugged in utter confusion over what it actually would mean to sue a President. Since I've seen lots of shrugged shoulders on this topic, I thought I'd try to help out.

On July 30th, just before their August break, the U.S. House of Representatives voted and approved a resolution (H.Res 676) to authorize suing the President. The vote was 225-201. No Democrat voted for it. Five Republicans voted against, not because they were with Democrats, but because they don't think a lawsuit goes far enough (they want to impeach).

With this vote, House Republicans allege that the President has used executive orders to subvert "faithful execution" of the law. In practical terms, they think he's "gone too far" and have tossed around such specious words as "tyranny," "fascist," and "dictator."

Intra-governmental lawsuits aren't unprecedented. Individuals in Congress have sued Presidents. For example, Dennis Kucinich and nine other representatives sued President Obama with regard to military action in Libya that had not been approved by Congress. In the recent case against the Defense of Marriage Act, the House sent a special panel (called, of all things, a BLAG - Bipartisan Legal Advisory Group) to represent the entire House's interest in the case. Well, the House's pro-DOMA interests. (Since Obama had ordered the Department of Justice to stop defending DOMA, Rep. Boehner insisted the pro-DOMA voice be represented. Ironically enough, Justice Anthony Kennedy noted that the involvement of Boehner's BLAG had made the Court feel more confident in ruling DOMA unconstitutional as there was no evidence that pro-DOMA voices had been excluded from the arguments. But I digress ...)

If you wanted to, you -- yes you -- could sue the President for an entirely personal matter. Sure you could! Let's say the President swiped your lunch from the office fridge (fact check note: there is NO evidence that this has ever happened), causing you to be both hungry and hangry and to suffer physical and emotional pain. You are more than allowed to sue the President in civil court just as you would anyone else who had caused you harm. Or let's say you are Paula Jones. Or that time Hugh Lee Bailey sued President Kennedy for injuries sustained in a traffic accident.

There has never, however, been an instance of a legislative body suing a sitting President. So, the answer to the question, "How does it work for Congress to sue the President?" has been a resounding, "We have no fucking idea." Except that politicians and pundits don't generally swear in front of the media. The best answer to the question of how to sue the President looks like this:

1. Let everyone know WHY you want to sue the President. So far John Boehner has stated that the President has both "gone too far" with executive orders and "not faithfully executed" executive orders. The specific issue Boehner is citing is an executive order that delayed what is perhaps the least popular piece of the Affordable Care Act, the employer mandate.

Republicans hate the employer mandate. President Obama issued an executive order that allows companies an extra year before being subject to the mandate's financial penalties. They say that this executive order undermines the faithful execution of the Affordable Care Act. Are House Republicans really angry that Obama is giving companies more time to comply with the mandate? Are they worried that giving companies extra time may increase Obama's popularity? And, as I will discuss in a minute, does this delay actually cause injury to the House?

2. Call in the BLAG! (Seriously, this is acronym is one letter away from the noise I make when a situation seems frustratingly difficult. How apropos.) It only takes a simple majority vote in the House to authorize BLAG to represent the interests of the House. And since the BLAG is directed by Boehner (who is not actually a lawyer himself, BTW), it isn't hard to guess what their to-do list will look like. The BLAG will consist of 3 Republicans and 2 Democrats; they will take a vote among themselves about whether or not to pursue the lawsuit. (Related: There is still some debate about whether or not the Senate needs to authorize using BLAG. If so, it would be considerably more difficult to get that vote in the Democrat-majority Senate.)

3. Get someone in a long black robe to listen to you. Experts say that this is the most difficult step. Boehner's BLAG will need to determine how to make the case and then, equally importantly, where and when to submit their case. Where and when is important to pass the first hurdle - establishing standing. "Standing" simply means that you can show evidence of how you have been injured. For the record, disagreement - even violent disagreement - does not count as injury. No injury, no lawsuit, case dismissed.

For example, when Kucinich, et al tried to sue over Libya, they couldn't prove that they had been harmed and their suit was tossed out. And then there was the more famous case of Duggan vs. Brady (well, not quite, since the judge actually heard Duggan's case in the first place).

Why is this going to be so hard? Well, for one, members of the House have medical insurance through the Federal Employees Health and Benefits Program; they aren't affected by Obama's delaying of penalties related to the employer mandate. They are going to be hard-pressed to prove injury. Also, traditionally courts have been unwilling to get involved.

One good reason is that it sets a precedent for using the courts to arbitrate disagreements, which is not how politics is supposed to work. Legislative and Executive branches of government are supposed to make progress with discussion, debate, constituent input, and compromise.

Another good reason is that in our checks-and-balances system, it seems inappropriate to have one branch (Judicial) have authority over the other two (Legislature and Executive Office) via having the last word in their disputes. Conflict of interest, anyone?

4. Argue the case. If BLAG (and experts agree that this is a pretty big if) can get its case heard, then it will be on them to prepare, present, and win a case against the President.

Other questions you may be asking:

But Obama is really trying to do a lot by executive order, right?

Maybe. It probably depends on how you feel about what he is trying to accomplish with his executive orders. George W. Bush wrote executive orders that: cut federal funding for any scientific research that used embryonic stem cells, allowed for alternate interpretations of the Geneva Conventions (to keep torture legal), gave private U.S. companies working in Iraq lots of immunity from actions that would otherwise be quite illegal, and made it easier for religious organizations to get federal money/contracts and still discriminate in hiring/employment, to name a few.

Incidentally, President Obama is issuing executive orders at the slowest rate since Grover Cleveland. Then again, some on the right say it's not how many orders a President issues, but what the orders contain.

What did that vote (H.Res 676) even mean? What was the point?

When BLAG was first convened, the courts raised concern that a 5-person panel did not necessarily represent the interests of the entire legislative body. The vote is an attempt to prove that BLAG is representative of the House's interests should that come up as a question when, or rather, IF, they get to court.

What will it cost?

Again, we don't know. Democrats have demanded a cost figure but Republicans have not provided a number.

What's the point?

One end-game theory is that IF BLAG succeeds in getting a trial and IF they win and IF Obama insists on giving companies more time to comply, THEN there MAY be grounds for impeachment. Honestly, this seems to have far longer odds than winning at Plinko (I'm pretty sure no one has ever landed all the Plinko chips in the center slot).

Is Obama worried?

Not really. House Republicans intended to send a message that government by executive order needed to stop, or at least slow down. It doesn't seem to have worked, however, because immediately after the House's vote, the President signed an executive order, Executive Order: Fair Pay and Safe Workplaces. This latest executive order has teeth. Features include: investigating all potential federal contractors for adherence to existing workplace health, safety, and labor laws, as well as requiring all potential contractors to disclose any such violations in their history. It's a clear directive that government money will be intentionally steered toward companies who are doing right by their employees.

And then there's this:

Why do I care? Isn't this just a political stunt on both sides? Will H.Res 676 have any larger impact?

If the courts intervene, there's no question that the Executive branch is weakened while the Legislative and Judicial branches are strengthened. For those who think executive power has expanded too laterally, restricting executive authority could potentially be a good thing. Restricting executive authority is different from using the courts to settle fiercely partisan legislative imbroglios; no one seems to think THAT is a good thing.

But, for House Republicans, it seems like a devil's bargain. For one, they've been arguing for a long time against "government via the courts" and have sought to restrict the power of the courts. Additionally, what happens when the tables are turned and House Democrats are suing a Republican president?

So, will the House Republicans pursue this authorized lawsuit? Will any court hear them? Is this a good use of national time and attention? This is pretty uncharted territory and on most questions regarding suing the President, the jury is still out.