John Boehner vs. Obama 101: Could plan to sue president work?

House Speaker John Boehner (R) of Ohio plans to introduce legislation in July that would authorize the US House to sue President Obama. In a memo to members on Wednesday, the speaker said the suit would compel the president to “faithfully execute the laws of our country.”

Legal experts say the effort has no chance of succeeding, so why is Speaker Boehner pursuing this course? Here's an explanation the political and legal background of the move.

What is this all about?

In a nutshell, it’s about the upcoming midterm elections and satisfying the Republican base, some experts say.

“The whole memo is remarkably non-specific. That suggests it’s meant more as political propaganda,” wrote Paul Rothstein, a professor at Georgetown Law, in an e-mail after reviewing the memo.

Boehner’s memo accuses Mr. Obama of selectively enforcing, changing, and even creating the law – giving the president dangerous “king-like authority” and even endangering the economy because of the uncertainty he’s creating.

Republicans are angry with Obama’s executive decisions not to deport some children of illegal immigrants; not to inform Congress that he’s released prisoners from Guantánamo Bay; not to enforce federal marijuana laws; and to rely heavily on the Environmental Protection Agency to restrict greenhouse gases, among other things.

By introducing legislation, the speaker allows his caucus a timely, preelection opportunity to deliver juicy sound-bites from the House floor that will be aired on C-SPAN. This is the equivalent of free campaign advertising.

Why won’t this work as a legal challenge? 

The first tipoff that the speaker’s plan will fail – as a legal matter, anyway – is his intention to use legislation for authorization to sue the president. Legislation means law. To become law, a bill has to be passed by both houses of Congress and signed by the president.

“Good luck with that,” says Akhil Amar, a constitutional scholar at Yale Law School. 

There are other legal problems here. To sue, a plaintiff needs to make a specific charge or charges, so that a judge can apply a remedy – i.e., Mr. President, you must stop doing (or start doing) such and such. Boehner’s memo made no such charges. He simply stated that:

“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.”

The plaintiff also needs to have legal standing, to show harm, which is why legal experts say a complaint should best be filed by an individual. Courts know that it's hard to show harm to a political body that is also politically divided.

Has anyone ever successfully sued the president?

Experts in the separation of powers point to the case of Kennedy v. Sampson, when the US Court of Appeals in Washington agreed with Sen. Edward Kennedy in 1976 that President Richard Nixon had abused the use of the “pocket veto.”

A president has 10 days to sign a bill, though he can invoke a “pocket veto” simply by not signing if Congress adjourns. Senator Kennedy charged that President Nixon’s use of a pocket veto over a short-term Christmas-break deprived him of his right to attempt to override a presidential veto.

The case never made it to the Supreme Court because presidents stopped abusing the pocket veto, explains Lou Fisher, a scholar in residence at The Constitution Project.

Notably, Kennedy personally brought the charge. He showed that his constitutional right was infringed by the action of the president.

Well, is the president failing to faithfully execute the law? 

This is a huge matter of debate. Legal scholars such as Mr. Rothstein, at Georgetown, argue that Obama “is pushing the envelope” of his presidential powers by, for instance, not enforcing federal marijuana laws and not obeying a law that requires him to inform Congress before releasing prisoners from Guantánamo Bay.

But Mr. Amar says that in a case such as marijuana, presidents have discretion not to prosecute. Remember, he says, that President Gerald Ford chose not to prosecute but rather to pardon Mr. Nixon, who resigned in 1974 over the Watergate scandal.

These different interpretations illustrate why courts stay away from balance of power disputes, says Mr. Fisher. They expect such issues to be resolved by elections, by sinking approval ratings, by behavior changes as a result of political pressure, or by Congress writing new laws.