This week, the House of Representatives approved a bill to fast track civil lawsuits filed by Congress against President Barack Obama for allegedly abusing his powers. The bill does raise some interesting constitutional questions, but it also faces steep challenges.
Before the constitutional questions, there is the basic political question of how the bill, proposed as the Enforce The Law Act by Representative Trey Gowdy, would clear a Senate with a Democratic majority. And then there is the issue of the 100 percent probability of a presidential veto, which would need to be overcome by a two-thirds majority vote in the House and Senate.
Under the proposed bill, the House or Senate could fast track for any civil lawsuit against the President if that President “failed to meet the requirement of Article II, section 3, clause 17, of the Constitution of the United States to take care that a law be faithfully executed.” Once such a lawsuit is decided in a three-judge district court, any appeal would be sent directly to the U.S. Supreme Court.
“The Constitution gives Congress the responsibility to write the laws and the Executive to enforce them,” Gowdy said. “We don’t pass suggestions. We don’t pass ideas. We pass laws.”
Republicans are upset about President Obama’s enforcement of the Affordable Care Act (or Obamacare), his immigration policy, and his refusal to defend a federal ban on same-sex marriage.
Senate majority leader Harry Reid called the bill “dead on arrival” and said, “House Republicans today voted to prevent the President from fixing the problems that are within his constitutional authority to solve.”
In a statement, the White House said the bill exceeded constitutional limits, and alleged that Congress was trying to assign itself additional constitutional powers.
This all gets to a bigger constitutional issue that the Supreme Court has partially addressed before: Can Congress launch a civil lawsuit against a sitting U.S. president?
In 1982, the Court ruled in Nixon v. Fitzgerald that a President is entitled to absolute immunity from liability for damages based on his official acts.
Justice Lewis Powell, writing for the majority in a 5-4 decision, said that this broad immunity was a function of the “President’s unique office, rooted in the constitutional tradition of separation of powers and supported by our history.”
Powell added that there were other ways to guard against alleged presidential misconduct, without a stream of lawsuits.
“A rule of absolute immunity for the President does not leave the Nation without sufficient protection against his misconduct. There remains the constitutional remedy of impeachment, as well as the deterrent effects of constant scrutiny by the press and vigilant oversight by Congress. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature.”
A later case, Clinton v. Jones, established that a President didn’t have immunity from a civil lawsuit regarding his or her conduct before and after holding office.
And in his footnotes in the Nixon v. Fitzgerald decision, Powell said the decision was about private lawsuits. “We need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States,” he said.
Back in 2011, 10 members of Congress did sue President Obama over his decision to use military force in Libya. According to the Congressional Research Service from 2012, a reviewing federal district court dismissed the case on jurisdictional grounds due to lack of standing.
The CRS did say that in prior cases, “the reviewing courts have found that neither side has taken steps that would give the courts a viable statutory or constitutional issue to resolve, rather than a policy dispute. … litigation by Members of Congress to force a decision has not been preceded by legislative actions that have been sufficient to create the ‘irreconcilable conflict’ between the executive and legislative branches that might make a judicial decision possible, if not probable.”
David Rivkin and Elizabeth Price Foley explained the standing problem in more detail in a January article on Politico.com.
“Congress’s ability to reclaim its powers through litigation faces a substantial roadblock in the form of a presumption against congressional ‘standing,’” they said. Rivkin and Price point to another court decision, Raines v. Byrd (1997), that seemingly banned individual members of Congress from suing the President.
But they didn’t eliminate the possibility of congressional lawsuits against a President.
“Raines is best understood as establishing only a presumption against congressional standing that can be rebutted in the right circumstances. Indeed, there are powerful reasons why members of Congress should be permitted to sue the president when the situation warrants,” they said. “Standing should not bar enforcement of the separation of powers when there are no other plaintiffs capable of enforcing this critical constitutional principle. “ (Rivkin and Price also explain this point in relation to a Colorado court decision they believe should inspire Congress.)
In another analysis from 2001, the CRS didn’t close the door on the issue.
“Raines, the first ruling of the Court on the issue of the standing of Members of Congress when they assert an injury to their institutional authority as legislators, revealed the Court’s reluctance to grant standing to Members because of separation of powers considerations, but the case did not fully define the circumstances in which congressional plaintiff suits may be permissible,” the service said.
Louis Fisher, a congressional expert who spoke with the Christian Science Monitor about the recent House bill, told the Monitor that he was doubtful any court would take a congressional lawsuit targeted at a President. He said the typical reaction would be: “You’ve got remedies of your own. Don’t bother us.”
And in the case of the 10 congressional members who sued President Obama over Libya, federal judge Reggie Walton said as much in his decision.
“While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law,” Walton said.
Judge Walton expressed dismay that the plaintiffs wanted “to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.”
Scott Bomboy is the editor in chief of the National Constitution Center.
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