Stephanie
Diamond Member
- Jul 11, 2004
- 70,230
- 10,864
- 2,040
Well?
SNIP:
The House is set to vote this week on H.Res. 676, which would authorize the chamber to file a lawsuit against the president for his failure to faithfully execute the laws as the Constitution commands. Such a suit raises many interesting legal issues, but there also are many silly arguments against the proposal that should be promptly dismissed.
Whether the House would have standing to bring such a suit in federal court is one of the serious issues, even if some unqualified statements against standing fall into the silly category. But, as many others have acknowledged, the desire to stop abuses of executive power is compelling.
The red herrings and myths about the proposed lawsuit outnumber the legitimate issues with it:
Myth 1: The political branches can never sue each other. The federal courts have enforced various subpoenas by a house of Congress against the executive branch, especially when it is clear that the suit is authorized by the entire branch. The famous ruling against President Nixon for the production of his Oval Office tapes was initiated by a grand jury, but the court stated that Congress might also compel a president to produce records in certain circumstances, even if the president has invoked executive privilege. The courts should not get involved in the substance of a policy dispute, but saying what the law is sometimes includes enforcing the separation of powers by drawing lines between the branches and declaring that, yes, the president does have the authority to do X or he does not. The interesting question is what kinds of cases the courts will and will not hear, not whether they will hear any at all.
Myth 2: The Supreme Court held in Raines v. Byrd (1997) that Congress cant challenge the execution of a law. Although the Court held that several members of Congress did not have standing to contest the constitutionality of the line-item-veto law at issue, the Court explained that three factors influenced its decision in that case, none of which would apply to the contemplated House suit: The suit by a handful of members (sore losers) was disfavored; the challenged provision had not yet been exercised, which made the suit hypothetical; and there likely would be private citizens who could (and did) bring a similar challenge when the veto was invoked. It would have been so much simpler for the Court to write that a legislature can never sue to enforce its powers if that were so, but the Court has never said that. Indeed, the High Court held in Coleman v. Miller (1939) that a majority of state senators may challenge an action by the states lieutenant governor, who they alleged invalidated their votes, in federal court.
Myth 3: The House has various political checks it can use against the president, and thus, it is improper to involve the courts in a dispute with the president. The second part just doesnt follow from the first. Private citizens also have political checks against elected officials, including recall in some situations, mass protests, scathing criticism, and throwing the bums out in the next election, but they can also sue an executive official when they have an injury that a court can redress. Lawsuits are not always the most effective option, but an all of the above strategy may be the most prudent course to vindicate vital liberties. And in any event, the courts arent open just when the lawsuit is more effective than political options. Judges should decide whatever suits they have jurisdiction to hear. Wrongly invoking the political question doctrine to decline hearing a case is itself a political act, which the courts must avoid.
Myth 4: The House should use its power of the purse, which is supreme, and not defer to the courts, which often get things wrong. There is no reason the House cant continue to pursue any of its budget or other political checks on the executive and still file a lawsuit on the violation of an existing law, and it neednt ever yield on its appropriations authority, regardless of how the courts rule in the proposed suspension lawsuit. The courts are less likely to hear the challenge under the prudential standing doctrine if they think that the House could secure the same result unilaterally or that it was neglecting its own powers generally. So it would be a serious mistake for the House to signal that it is putting all its eggs in the judicial basket, but that clearly isnt necessary. Some have argued the House would have more success if it used its appropriations power more creatively given the current media and political climate, but there is nothing preventing it from doing so if it files a discrete lawsuit on a particular suspension of law.
all of it here:
Top Ten Myths about the House?s Proposed Suit Against Obama | National Review Online
SNIP:
The House is set to vote this week on H.Res. 676, which would authorize the chamber to file a lawsuit against the president for his failure to faithfully execute the laws as the Constitution commands. Such a suit raises many interesting legal issues, but there also are many silly arguments against the proposal that should be promptly dismissed.
Whether the House would have standing to bring such a suit in federal court is one of the serious issues, even if some unqualified statements against standing fall into the silly category. But, as many others have acknowledged, the desire to stop abuses of executive power is compelling.
The red herrings and myths about the proposed lawsuit outnumber the legitimate issues with it:
Myth 1: The political branches can never sue each other. The federal courts have enforced various subpoenas by a house of Congress against the executive branch, especially when it is clear that the suit is authorized by the entire branch. The famous ruling against President Nixon for the production of his Oval Office tapes was initiated by a grand jury, but the court stated that Congress might also compel a president to produce records in certain circumstances, even if the president has invoked executive privilege. The courts should not get involved in the substance of a policy dispute, but saying what the law is sometimes includes enforcing the separation of powers by drawing lines between the branches and declaring that, yes, the president does have the authority to do X or he does not. The interesting question is what kinds of cases the courts will and will not hear, not whether they will hear any at all.
Myth 2: The Supreme Court held in Raines v. Byrd (1997) that Congress cant challenge the execution of a law. Although the Court held that several members of Congress did not have standing to contest the constitutionality of the line-item-veto law at issue, the Court explained that three factors influenced its decision in that case, none of which would apply to the contemplated House suit: The suit by a handful of members (sore losers) was disfavored; the challenged provision had not yet been exercised, which made the suit hypothetical; and there likely would be private citizens who could (and did) bring a similar challenge when the veto was invoked. It would have been so much simpler for the Court to write that a legislature can never sue to enforce its powers if that were so, but the Court has never said that. Indeed, the High Court held in Coleman v. Miller (1939) that a majority of state senators may challenge an action by the states lieutenant governor, who they alleged invalidated their votes, in federal court.
Myth 3: The House has various political checks it can use against the president, and thus, it is improper to involve the courts in a dispute with the president. The second part just doesnt follow from the first. Private citizens also have political checks against elected officials, including recall in some situations, mass protests, scathing criticism, and throwing the bums out in the next election, but they can also sue an executive official when they have an injury that a court can redress. Lawsuits are not always the most effective option, but an all of the above strategy may be the most prudent course to vindicate vital liberties. And in any event, the courts arent open just when the lawsuit is more effective than political options. Judges should decide whatever suits they have jurisdiction to hear. Wrongly invoking the political question doctrine to decline hearing a case is itself a political act, which the courts must avoid.
Myth 4: The House should use its power of the purse, which is supreme, and not defer to the courts, which often get things wrong. There is no reason the House cant continue to pursue any of its budget or other political checks on the executive and still file a lawsuit on the violation of an existing law, and it neednt ever yield on its appropriations authority, regardless of how the courts rule in the proposed suspension lawsuit. The courts are less likely to hear the challenge under the prudential standing doctrine if they think that the House could secure the same result unilaterally or that it was neglecting its own powers generally. So it would be a serious mistake for the House to signal that it is putting all its eggs in the judicial basket, but that clearly isnt necessary. Some have argued the House would have more success if it used its appropriations power more creatively given the current media and political climate, but there is nothing preventing it from doing so if it files a discrete lawsuit on a particular suspension of law.
all of it here:
Top Ten Myths about the House?s Proposed Suit Against Obama | National Review Online
