To Sue the President (Part III)

This is the second part of an on going series in which I will cover the lawsuit initiated by the House of Representatives again President Obama.

Click here for Part I, Part II


I think it is important to start the deeper analysis by focusing on the question of whether or not an Article III Court can even hear a possible lawsuit by the House of Representatives against the President.

Lyle Denniston, who is perhaps best know for his work at SCOTUSblog, while writing for the National Constitution Center briefly laid out what the basic issues are when it comes to using litigation as an alternative to impeachment:

But what of the alternative of suing the president? First, someone with a definite legal grievance against the president, who can show that the president’s actions have actually caused that person (or that organization) some injury, must be available to file the lawsuit.  Second, the courts must be willing to allow themselves to be drawn into the middle of a dispute between the other two branches of the federal government, and must have the power to actually resolve that dispute in a specific constitutional way. Suing a president – that is, the mere fact of filing a lawsuit – is much easier than getting articles of impeachment approved by the House.  But succeeding in such a lawsuit is another matter.

Mr. Denniston [1] rightfully points out that in civil litigation one must always point to some form of injury. I cannot stress this enough. Injury is the foundation of law. Without injury, there is no need for adjudication. The first question that the court needs to be answered is if the elements of a lawsuit have been satisfied.

The problem insofar as analyzing this avenue is that as of this moment the House of Representatives has not put forward a Cause of Action. So we do not know what precisely the House is suing over, which makes it difficult to say with certainty if the elements have been met.

The second point of the article is referring to the Political Question Doctrine, which I find to be just as interesting as the first issue. It is also the area that I want to examine further in depth.

Wex Dictionary, which is sponsored by the Cornell University Law School, defines the Political Question Doctrine as the following:

Federal courts will refuse to hear a case if they find it presents a political question.  This phrase is construed narrowly, and it does not stop courts from hearing cases about controversial issues like abortion, or politically important topics like campaign finance.  Rather, the Supreme Court has held that federal courts should not hear cases which deal directly with issues that Constitution makes the sole responsibility of the other branches of government.  Baker v Carr, 369 U.S. 186 (1962). Therefore, the Court has held that the conduct of foreign relations is the sole responsibility of the executive branch, and cases challenging the way the executive is using that power present political questions. Oetjen v. Central Leather Co., 246 U.S. 297 (1918). Similarly, the Court has held that lawsuits challenging congress' procedure for impeachment proceedings present political questions.  Nixon v. United States, 506 U.S. 224 (1993).

So essentially if the Constitution makes a subject the sole responsibility of  one branch of the government, they cannot be sued by the other in an Article III Court. (A bit of topic, but this is one of the reasons the Constitution establishes impeachment proceedings.And as in Nixon v. United States, Article III Courts cannot hear questions to impeachment proceedings.)

While we still run into the same issues as before, in that the House Representatives has not put forward a Cause of Action, the H. Res. 676 does provide enough guidance to discuss the basics of subject matter jurisdiction.

As anticipated before I read the article by Mr. Denniston, in the next article I will be covering Baker v Carr, 369 U.S. 186 (1962).


Liam '14


Click here for Part I, Part II

Footnotes:

[1] Here is the biography of Lyle Denniston as provided by SCOTUSblog, "Lyle Denniston has been covering the Supreme Court for fifty-six years. In that time, he has covered one-quarter of all of the Justices ever to sit, and he has reported on the entire careers on the bench of ten of the Justices. He has been a journalist of the law for sixty-six years, beginning that career at the Otoe County Courthouse in Nebraska City, Nebraska, in the fall of 1948. He is not an attorney."

To Sue the President (Part II)

This is the second part of an on going series in which I will cover the lawsuit initiated by the House of Representatives again President Obama.

Click here for Part I.Part III

In this article I will be reviewing H. Res.676

On July 30, 2014 H. Res. 676 passed the House of Representatives with a vote of 225 - 201, near completely down party lines.It was introduced on July 22, by Pete Sessions of Texas.

The text of the resolution reads as following:

H. Res. 676
In the House of Representatives, U. S.,
July 30, 2014. 

    Resolved, That the Speaker is authorized 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 any appropriate relief regarding the failure of the President, the head of any department or agency, or any other officer or employee of the executive branch, to act in a manner consistent with that official's duties under the Constitution and laws of the United States with respect to implementation of any provision of the Patient Protection and Affordable Care Act, title I or subtitle B of title II of the Health Care and Education Reconciliation Act of 2010, including any amendment made by such provision, or any other related provision of law, including a failure to implement any such provision.

    Sec. 2.  The Speaker shall notify the House of Representatives of a decision to initiate or intervene in any civil action pursuant to this resolution.

    Sec. 3. (a) The Office of the General Counsel of the House of Representatives, at the direction of the Speaker, shall represent the House in any civil action initiated, or in which the House intervenes, pursuant to this resolution, and may employ the services of outside counsel and other experts for this purpose.

    (b) The chair of the Committee on House Administration shall cause to be printed in the Congressional Record a statement setting forth the aggregate amounts expended by the Office of General Counsel on outside counsel and other experts pursuant to subsection (a) on a quarterly basis. Such statement shall be submitted for printing not more than 30 days after the expiration of each such period.

There are several interesting issues that creep up in the Resolution. It sets forth that the scope of the civil action is limited to portions of the ACA including action for failing to implement a provision. It also also for multiple actions against the Executive Branch. So the lawsuit(s) is because the President either enforced or didn't enforce the ACA, or both? Ach Nee!

The Office of the General Counsel of the House of Representatives will represent the House, but the resolution allows for the services of outside counsel. How they will pay for outside counsel is at this point anyone's guess. Perhaps they will raise taxes or borrow from China.

So if Speaker Boehner elects to go forward with a lawsuit (or several) based upon the Resolution, we still do not know what he is suing over. There is no Cause of Action with in the Resolution which is highly problematic. There must be a reason for bring forward litigation. The House voted to sue the President without a Cause of Action. It's not good enough to say "we don't like Obama, and we don't like the ACA; therefore lawsuit." It just doesn't fucking work that way.

It frustratingly stupid. It's kind of like if a grad student submitted a midterm paper that was lacking a coherent thesis paragraph... but this is more important. Perhaps it's more like submitting your tax filings but instead of numbers there are emoticons. And damn near every Republican signed off on it.

Hahahahahahahahahahaaaaaaaaaaaahahah stupid bastards....There are also no end dates so if a Republican President is ever in office and fails to implement the ACA or a section thereof and the Democrats regain the house. Wham!

The lack of a Cause of Action in the Resolution does not mean a lawsuit will automatically fail; it is the just an exemplar of how disreputable the 113th House Leadership is.


Liam '14

Part I.Part III

To Sue the President (Part I)

This is the first Part of an on going series in which I will cover the lawsuit initiated by the House of Representatives again President Obama.

Click here for Part II.

In this article I will layout my objectives for the series. I will be covering the legislation passed by the House of Representatives, case law from previous lawsuits against a sitting president, the various documents submitted to the court, and any court proceedings that may occur.

I will also make a greater effort than normal to reach out to other sources for legal opinion on the topic.

From the start of the series I do not believe that a lawsuit will succeed against the President; however, I do want to take this more seriously that what what the circus show deserves, and if I discover a legitimate cause of action, I will acknowledge it. 

From what I currently understand of the situation, the biggest part of the debate is whether or not an Article III court has subject matter jurisdiction to hear the lawsuit in first place. If the court does not have jurisdiction to hear the case, there will be roughly seven more articles to this series. The House Resolution, 3 Court Cases, Cause of Action, A Response, and then a Court Order. So yeah, around seven. Obviously if the Court accepts the suit it will be a longer series.

I will also try to make as few Boehner/Boner jokes as I possibly can and will also limit myself from calling Speaker Boehner, John of Orange, to a minimum.

Liam '14

Part II, Part III