Sue the president? Try winning an election first
Bill King says Boehner is dreaming if he thinks his lawsuit will succeed. The courts won’t hear his suit, and if they did, how could they enforce it?
I was dumbfounded when I heard the news that House Speaker John Boehner plans to have the House of Representatives sue President Barack Obama over his refusal to enforce certain federal laws. It is not that we don’t need to have a conversation in this country about the expansion of the executive branch’s power. But that has been going on for several decades regardless of which party held the White House.
But a lawsuit?
First, it seems likely that there would be virtually no legal merit to such as suit. For a person or entity to file a lawsuit, that person or entity must have something lawyers call “standing.” Standing roughly means that a person has been aggrieved by the action of the defendant. For example, I cannot sue someone for hitting your car.
In this case, Speaker Boehner’s principal complaint is that the president is selectively enforcing various laws. Now, the people who might be damaged or disadvantaged by systematic selective enforcement might have a case. For example, if you owned a company that was being forced to comply with the Affordable Care Act while others were not, you might have a case. But it is hard to imagine how in this context the House of Representatives has standing to sue.
However, even if the courts were willing to overlook that requirement, they have generally been reluctant to conclude that selective enforcement has occurred. The oath taken by most executive officers, including the president, is to “faithfully” execute the laws. What constitutes the “faithful” execution of the law is obviously open to a wide range of interpretations.
So, as a general proposition, judges have held that the executive branch — whether that is the president, a governor, a mayor, a district attorney or even a police officer — has wide discretion in deciding when to enforce the violation of a particular law. In the common, everyday case, no one argues that a police officer is legally obligated to give a ticket to every person who is stopped for a traffic violation.
One reason for the courts’ reluctance to intrude in this area is their lack of an effective remedy. Every lawsuit, if the plaintiff is successful, should end in an order of the court that it has the power to enforce. But how would a court enforce an order to a sitting president to enforce a law?
Take the issue that some have with the Obama administration’s policy that disallows the deportation of certain immigrants who were brought here illegally as children by their parents. If a court were to order the president to start deporting these young people, how in the world would it enforce that order? Is it going to hold the president in contempt if he refuses?
This is not a new dilemma for the courts. In a famous case during the presidency of Andrew Jackson, the Supreme Court issued a ruling that he did not like. He is reported to have said, “They have made their decision, let them enforce it.”
Laying aside all the legalese, we have a process to adjudicate the question of whether an executive officer is “faithfully executing the law.” It is called an election. And that is where I find Boehner’s proposed lawsuit to be completely tone-deaf.
Take again the example of deporting the children of immigrants who came here illegally. Obama announced his policy on that subject in June 2012, four months before the last presidential election. The American people clearly understood that he was not going to deport these young people if he was re-elected. And yet, he was easily re-elected.
And it is possible that Obama’s policy is one of the reasons he was re-elected, as polls show that Americans overwhelmingly agree with his position on that issue. This perhaps accounts for why Boehner is having second thoughts about including immigration in his lawsuit.
Some of the president’s other decisions not to enforce various laws may rub people the wrong way — giving large corporations more time to comply with the Affordable Care Act, for example.
But my guess is that Boehner’s lawsuit will be trumpeted by Democrats in the 2014 and 2016 elections as the Republicans trying to force the president to deport thousands of innocent children.
And this is where I find myself shaking my head at Boehner and Republican leaders generally. You cannot keep pressing issues where a large majority of Americans disagree with you and expect to win a national election.
If you don’t like the way the president is enforcing the laws, here is a suggestion: Win an election. But, in the meantime, do not waste our time and money on a lawsuit.
