sebster wrote:
Yeah, if something does get passed by a bi-partisan panel... but you've been claiming this is bi-partisan before that panel has even met, let alone voted on the issue and then had anyone come out and say that the vote was along party lines and not bi-partisan.

 sebster wrote:
Right now the grand total list of people on either side who've supported this measure in any official capacity reads as;

1) John Boehner.

You concluded that was a bipartisan group.

WASHINGTON — As if President Obama doesn't have enough on his plate, the former constitutional law professor might spend the last 2½ years of his term in court, battling Republicans over whether he violated the Constitution.

House Speaker John Boehner's plan to sue the president for going around Congress on issues such as health care, immigration and prisoner exchanges represents an unprecedented congressional reaction to arguably unprecedented presidential initiatives.

Boehner's legal challenge may be a long shot, particularly in lower federal courts that traditionally support the government. But if he carries his case all the way to the Supreme Court, it could outlast Obama's presidency.

As a result, Boehner v. Obama could come to symbolize the president's contentious relations with congressional Republicans in much the same way impeachment proceedings against President Bill Clinton did in the late 1990s.


USATODAY
Boehner to sue Obama in executive authority dispute
"It's very unlikely that you could resolve anything of this sort until Obama is gone," says Norman Ornstein, a congressional and presidential scholar at the American Enterprise Institute.

Boehner has yet to outline Republicans' specific case against Obama for violating Article 2, Section 3 of the Constitution, which says the president "shall take care that the laws be faithfully executed." The House Rules Committee will convene a hearing next week before voting on legislation authorizing a lawsuit, which Republicans then would approve in the full House.

The speaker's choices are many, but his constitutional argument is untested. Most liberal legal experts scoff at his chances; most conservatives lend them credibility.

"It's very important that the Constitution is phrased the way it's phrased," says Simon Lazarus, senior counsel at the liberal Constitutional Accountability Center. It requires the president to show judgment and exercise authority through subordinates, he says, rather than execute every part of every law personally.

"It has to be challenged in my judgment," counters Curt Levey, executive director of the conservative Committee for Justice, "and this may be the best way to challenge it."

Whether Obama has violated the Constitution will come down to the specific actions Boehner challenges. Arguably, the president's overall record on executive actions isn't extraordinary. He has issued 182 executive orders in more than five years — a slower pace than any of his immediate predecessors. Ronald Reagan issued 381 in eight years; George W. Bush, 291.

But some of Obama's recent actions have addressed major policy issues such as the minimum wage, immigration and same-sex marriage. He made his case for unilateral action transparently, telling Congress in this year's State of the Union address that "wherever and whenever I can take steps without legislation to expand opportunity for more American families, that's what I'm going to do."

When presented with Boehner's plan of attack, his response was simple: "So sue me."

"Some of the Republicans in Congress are mad at me for going ahead and doing things," Obama told supporters in Denver Wednesday. "They have plans to sue me for taking executive actions that are within my authority — while they do nothing."

That's what Noel Canning, a Pepsi bottler in Yakima, Wash., did in 2012. The company's legal battle over Obama's "recess appointments" to the National Labor Relations Board ended last month when the Supreme Court declared the appointments unconstitutional because the Senate was not in recess.

Although Noel Canning had the right to sue over the NLRB's ruling on its union contract, it's not clear that House Republicans have standing to sue Obama.


USATODAY
High court rules against Obama on recess appointments
When six members of Congress challenged the constitutionality of the presidential line-item veto in 1997, the Supreme Court denied standing, ruling that the loss of congressional power was an "abstract and widely dispersed" injury.

And last year, the court allowed the Bipartisan Legal Advisory Group, composed of the top five House leaders, to defend a law denying federal benefits to legally married same-sex couples after the Justice Department refused to defend it. It did not rule either way on the issue of standing.

Conservatives hope the courts will grant Congress standing to file suit even though Obama's actions, such as those affecting health care and immigration, did not injure anyone.

"Without judicial review of the president's suspension, there is literally no other way — short of impeachment — to defend separation of powers," appellate lawyer David Rivkin and Elizabeth Price Foley, a Florida International University law professor, argued in a recent article.

"I think standing is the whole ball game," says Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute. "If Boehner gets past standing, that's the toughest challenge. At that point, I think he has the better case over Obama."

That case could include:

•A variety of exemptions and delays granted after the enactment in 2010 of Obama's signature health care law, such as the mandate that employers offer health insurance to their employees.

•The halting of deportations for thousands of undocumented immigrants who came to the USA as young children.

•The prisoner swap that freed five Taliban prisoners from Guantanamo Bay in exchange for Sgt. Bowe Bergdahl without prior congressional notification.

"I think it is clear that the president has overstepped his authority on a number of occasions," says Jonathan Turley, a professor at George Washington University Law School. "The president is effectively nullifying federal law."

On health care, the president could be helped or hurt by a ruling that could come as soon as Thursday from the U.S. Court of Appeals for the District of Columbia Circuit. A three-judge panel is set to decide whether the Internal Revenue Service had the right to offer tax subsidies to participants in federal health exchanges, rather than only state exchanges. A ruling against Obama could blow a hole in the health care law — and probably would be appealed to the full circuit court or the Supreme Court.

The case on immigration may be harder to make. In a landmark 2012 ruling involving Arizona's challenge to federal immigration laws, the Supreme Court granted considerable leeway to the federal government to exercise "discretion" when dealing with "immediate human concerns."

"You could make a case if you wanted to that he stretched his executive authority on immigration, and he stretched his executive authority in some areas of the (health care law)," Ornstein says. "All of those fit well within the zone of executive discretion. But they are using executive discretion in an expansive way."

 d-usa wrote:
The article in a nutshell:

"We don't know what his case is, but it's a better case than Obama's."

 Dreadclaw69 wrote:

 sebster wrote:
Right now the grand total list of people on either side who've supported this measure in any official capacity reads as;

1) John Boehner.

You concluded that was a bipartisan group.

The vote hasn't even taken place yet, obviously the person who proposed it supports it. And the group is bi-partisan, unless the composition of it has changed to contain members of only one party

 Ouze wrote:
The House has voted to sue the President.

The linked article is not a news one, but a decent primer on the issues involved (DACA\Dream were not involved).

 Ouze wrote:
It's hard to say. I remain of the opinion that no such lawsuit should happen, and any court it might be filed in should dismiss it out of hand. It's really not the place of the judicial branch to intervene in how faithfully the executive upholds the law - the legislative already posses ample remedies for an errant executive.

It feels like election year nonsense, but amped up to levels rarely seen in my lifetime.

 Ouze wrote:
It's hard to say. I remain of the opinion that no such lawsuit should happen, and any court it might be filed in should dismiss it out of hand. It's really not the place of the judicial branch to intervene in how faithfully the executive upholds the law - the legislative already posses ample remedies for an errant executive.

It feels like election year nonsense, but amped up to levels rarely seen in my lifetime.

Congress: Can a member sue a President over policy differences?

Courts: No

Congress: How about a group of members?

Courts: Seriously?

 whembly wrote:

I still say, the fault remains with Congress with their history of passing open-ended laws/policies that forces the Executive Branch to interpret that themselves via Executive regulations.

 dogma wrote:

 whembly wrote:

I still say, the fault remains with Congress with their history of passing open-ended laws/policies that forces the Executive Branch to interpret that themselves via Executive regulations.

That's unavoidable. You can't expect Congress to tightly restrict all Executive action, even trying to do that would ensure that Congress passed even fewer pieces of significant legislation. Congress has to let the Executive perform its function. Of course there exceptions to this rule, but for the most part it holds.

Boehner’s lame stunt fizzles: The plan to sue Obama has gone, predictably, nowhere
SIMON MALOY


Remember when John Boehner was going to sue President Obama? It seems like an age ago, what with all the immigration crises and Ebola outbreaks and wars in the Middle East that happened since the House Republicans got it in their heads to file suit against the president over his changes to the Affordable Care Act’s implementation. The lawsuit was announced with great fanfare, and conservative political observers, like the Wall Street Journal editorial board, were impressed with Boehner’s seriousness. Hearings were held, votes were cast, and the suit was on its way through the legal system.

Or so we thought. Since voting to authorize the lawsuit in early July, Boehner and the House GOP have sat on their hands. “It takes about 10 minutes to walk from the Capitol to the federal courthouse just down the hill,” Politico’s Josh Gerstein reported last Friday, “but House Republicans haven’t managed to make that trip in the four months since they announced they’d be suing the president.”

Boehner’s slow-foot approach to the lawsuit is a bit puzzling, given that he justified the lawsuit in part by arguing that the Constitution was under imminent threat from Obama’s “lawlessness” and action had to be taken immediately. “The legislative branch has an obligation to defend the rights and responsibilities of the American people,” Boehner wrote in an Op-Ed for CNN, “and America’s constitutional balance of powers — before it is too late.” Now Boehner’s people are telling Politico that they’ll get around to it when they get around to it: “A spokesman for Boehner said the date for filing the litigation remains up in the air. ‘No decisions on timing at this point,’ spokesman Kevin Smith said Friday.”

So what’s going on here? Well, there seem to be three answers for why Boehner’s lawsuit is trapped in limbo. The first is that they never actually intended to follow through with the suit and that this was all a pre-election stunt intended to motivate the GOP base and mollify impeachment-crazy conservatives. That’s difficult to demonstrate conclusively, but it’s a satisfactory explanation for the utter lack of progress on the suit four months after its heavily hyped debut.


The second is that Republicans were actually going to file the suit, but started having second thoughts as the legal rationale fell apart and political embarrassments piled up. Key Republicans broke with Boehner by arguing that asking the courts to intervene in a separation-of-powers conflict was not the best solution, and that Congress’ best answer to executive overreach was to actually pass legislation. When the House Rules Committee held its hearing on the merits of the suit, it was discovered that one of the experts Republicans called to testify in favor of suing had previously argued unequivocally that Congress lacks standing to sue the White House .

As for the legal rationale for Boehner’s proposed action, the suit was considered a wild longshot even before the House voted to authorize it, and since then it’s only faced more and more setbacks. The most recent was turned up by Constitutional Accountability Center attorneys Simon Lazarus and Elisabeth Stein, who found a Congressional Research Service report from September that, in their view, leaves zero doubt that Boehner’s suit has no legal merit:

Although shrouded in twelve pages of fine print and protectively bureaucratic phraseology, the report’s bottom line is clear: not merely are the legal underpinnings of the Republicans’ planned lawsuit weak; the report turns up no legal basis – no “there” there – at all.

Per Lazarus and Stein, the report “bears the earmarks of an inquiry, requested by the Speaker or his allies, to give some color of legitimacy to their charges of rampant presidential illegality. Instead, the result validates the lawyers’ maxim not to ask a question when unsure of the likely answer.”

The third explanation for the delay is that Republicans want to wait until after the midterms so that they’re not seen as merely trying to influence the elections. That’s the theory put forth by one conservative legal analyst quoted by Politico: “After the election, it ought to garner more serious commentary, evaluation and judicial review.” This theory doesn’t make a ton of sense. The politicization of the lawsuit already happened. What difference would the simple bureaucratic act of initiating the lawsuit make when they already spent several weeks during the summer politicizing the hell out of the Rules Committee hearing on the suit and the party-line vote to authorize it? It’s a little late for the GOP to argue that they don’t want this to look political.

But whatever the reason, the fact remains that Boehner’s suit, once heralded as a necessary step to curb the abuse of President Obama’s executive authority, is now moribund.

As many on this blog are aware, I have previously testified, written, and litigated in opposition to the rise of executive power and the countervailing decline in congressional power in our tripartite system. I have also spent years encouraging Congress, under both Democratic and Republican presidents, to more actively defend its authority, including seeking judicial review in separation of powers conflicts. For that reason, it may come as little surprise this morning that I have agreed to represent the United States House of Representatives in its challenge of unilateral, unconstitutional actions taken by the Obama Administration with respect to implementation of the Affordable Care Act (ACA). It is an honor to represent the institution in this historic lawsuit and to work with the talented staff of the House General Counsel’s Office. As in the past, this posting is meant to be transparent about my representation as well as my need to be circumspect about my comments in the future on related stories.

On July 30, 2014, the House of Representatives adopted, by a vote of 225-201, H. Res. 676, which provided 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.

I have previously testified that I believe that judicial review is needed to rebalance the powers of the branches in our system after years of erosion of legislative authority. Clearly, some take the view of a fiat accompli in this fundamental change in our constitutional system. This resignation over the dominance of the Executive Branch is the subject of much of my recent academic writings, including two forthcoming works. For that reason, to quote the movie Jerry Maguire, the House “had me at hello” in seeking a ruling to reinforce the line of authority between the branches. [whembly: ]

As many on this blog know, I support national health care and voted for President Obama in his first presidential campaign. However, as I have often stressed before Congress, in the Madisonian system it is as important how you do something as what you do. And, the Executive is barred from usurping the Legislative Branch’s Article I powers, no matter how politically attractive or expedient it is to do so. Unilateral, unchecked Executive action is precisely the danger that the Framers sought to avoid in our constitutional system. This case represents a long-overdue effort by Congress to resolve fundamental Separation of Powers issues. In that sense, it has more to do with constitutional law than health care law. Without judicial review of unconstitutional actions by the Executive, the trend toward a dominant presidential model of government will continue in this country in direct conflict with the original design and guarantees of our Constitution. Our constitutional system as a whole (as well as our political system) would benefit greatly by courts reinforcing the lines of separation between the respective branches.

After I testified earlier on this lawsuit, I was asked by some House Members and reporters if I would represent the House and I stated that I could not. That position had nothing to do with the merits of such a lawsuit. At that time, in addition to my other litigation obligations, I had a national security case going to trial and another trial case in Utah. Recently, we prevailed in both of those cases. Subsequently, the House General Counsel’s Office contacted me about potentially representing House. With the two recent successes, I was able to take on the representation.

It is a great honor to represent the House of Representatives. We are prepared to litigate this matter as far as necessary. The question presented by this lawsuit is whether we will live in a system of shared and equal powers, as required by our Constitution, or whether we will continue to see the rise of a dominant Executive with sweeping unilateral powers. That is a question worthy of review and resolution in our federal courts.

 motyak wrote:
Thank god, I was worried they were actually going to focus on governing for a while. As I've said numerous times, it's pathetic how much effort people on the taxpayer's dollar put into stuff like this and how little they put into what they're paid to do. But they keep getting voted in, with at least some awareness of what they are going to do with their time and money, so maybe the people supporting them should stop complaining about how the rest of their tax dollars go to use (social services and what not) if they clearly don't give a gak how this portion is used.

 Ouze wrote:
Surely OP will deliver on a lawsuit.

 Dreadclaw69 wrote:

 motyak wrote:
Thank god, I was worried they were actually going to focus on governing for a while. As I've said numerous times, it's pathetic how much effort people on the taxpayer's dollar put into stuff like this and how little they put into what they're paid to do. But they keep getting voted in, with at least some awareness of what they are going to do with their time and money, so maybe the people supporting them should stop complaining about how the rest of their tax dollars go to use (social services and what not) if they clearly don't give a gak how this portion is used.

You mean like the POTUS taking steps to ensure that he does nothing to build bridges with Congress after his party lost the majority? By doing things like threatening to make Executive Orders on immigration? Of promising not to implement the Keystone XL pipeline? Or an emissions agreement with China?
The voters rejected his party, and him in particular. So what has he done? Ignored the results and claimed a mandate from those who didn't vote.

But lets ignore that and the continued erosion of checks and balances as the Executive Branch tries to obtain more power and just paint this as silliness. After all, it would be so much cheaper if the opponents of the POTUS just went along with his agenda, and ignored what their constituents want.

 Dreadclaw69 wrote:

 motyak wrote:
Thank god, I was worried they were actually going to focus on governing for a while. As I've said numerous times, it's pathetic how much effort people on the taxpayer's dollar put into stuff like this and how little they put into what they're paid to do. But they keep getting voted in, with at least some awareness of what they are going to do with their time and money, so maybe the people supporting them should stop complaining about how the rest of their tax dollars go to use (social services and what not) if they clearly don't give a gak how this portion is used.

You mean like the POTUS taking steps to ensure that he does nothing to build bridges with Congress after his party lost the majority? By doing things like threatening to make Executive Orders on immigration? Of promising not to implement the Keystone XL pipeline? Or an emissions agreement with China?
The voters rejected his party, and him in particular. So what has he done? Ignored the results and claimed a mandate from those who didn't vote.

But lets ignore that and the continued erosion of checks and balances as the Executive Branch tries to obtain more power and just paint this as silliness. After all, it would be so much cheaper if the opponents of the POTUS just went along with his agenda, and ignored what their constituents want.

 Dreadclaw69 wrote:
But lets ignore that and the continued erosion of checks and balances as the Executive Branch tries to obtain more power and just paint this as silliness.

 whembly wrote:
Eh... the problem is that the executive overreach is fast becoming "The Obama Rule".

And that's... spooky man.

 Ouze wrote:

 whembly wrote:
Eh... the problem is that the executive overreach is fast becoming "The Obama Rule".

And that's... spooky man.

Only if you've never watched the news before January 2009, I guess.

I mean, you remember when the previous administration would have a law passed to him for signing, and he'd sign it with a signing statement saying he felt like he could ignore it if he felt like it? There were around 1,100 of those statements, so you must remember one or two, right? Or when he decided to run with the theory of the Unitary Presidency, in which the President could do literally anything he wanted short of being impeached - that Congress literally had no check on the executive? Again, this is something that's been going on for a while.


Spoiler: the next administration is going to do exactly the same stuff regardless of party. Bush said it was OK to torture people without oversight, Obama said he could assassinate Americans without oversight, I mean, it's gonna get even more awesome, because Congress is never going to sack up and do their jobs. Legislating is hard, whining on the news and threatening to file meaningless, toothless lawsuits is easier I guess.

 Frazzled wrote:
You don't have to shutdown the government. Just don't fund some things or direct how that funding is spent.