February 5, 2015
Last week House Speaker Boehner raised the possibility of launching a lawsuit against the Obama Administration as an option for beating back the executive’s latest decree on amnesty. He’s suggested the suit would not be launched by individual congressional members but by the House as a bloc through an authorizing resolution, similar to last July’s Obamacare challenge. Courts seem to more favourable to the resolution-route when granting legal standing, which has always been a difficult area in congressional suits. But the case law in this area is far from certain and Boehner and his attorneys should be fully prepared for a tough fight.
A big question the courts haven’t directly tackled is to what extent congressional plaintiffs are required to show “institutional injury” in order to get the judge to hear their full case. When congressional members have sued individually claiming institutional injury, they’ve generally had to show that their votes were completely “nullified”, meaning that they have no recourse outside of a lawsuit, and that there was “actual confrontation” with the executive.
So far, in cases where the House passed a resolution to sue, the courts haven’t followed a “voter nullification”-inquiry because the complaint has “institutional authorization.” What may be a problem, however, is that in each of those cases the institutional harm in question involved a party (such as the White House or a corporation) refusing to abide by a congressional subpoena. In such cases, when Congress’s request for documents or witness testimony is refused, it’s obvious they have little recourse and that their congressional powers have been nullified.
If Boehner’s team is required to jump this nullification hurdle, two relatively recent cases involving individual member-suits will be key. The 1997 case of Raines v. Byrd involved 6 individual members who claimed that the Line Item Veto Act, which let the president “cancel” items in congressionally-passed appropriations bills, “dilute[d] their Article I voting power.” The court ruled that this was a mere “abstract dilution of institutional legislative power” and that they had to show a more concrete example of voter nullification. Central for the court was that the 6 plaintiffs’ vote against the bill had been “given full effect” and that they had “simply lost that vote.” Further, the court said, the members could have “repealed the Act” or “exempted appropriations bills from its reach.” The Line Item Veto Act would seem to offer little analogy to Obama’s amnesty memos, however, and as the Congressional Research Service has noted, Raines did not “eliminate a Member’s ability to establish standing to challenge an executive action.”
According to the Raines Court, crucially the 6 plaintiffs failed to show that “they voted against a specific bill, that there were sufficient votes to kill it, and that the bill was nonetheless implemented (by the executive).” This would appear to apply to the DREAM Act which despite being killed 24 times in Congress, was “nonetheless implemented” by the executive through the DACA program. On top of the DREAM Act, Boehner’s attorneys could also apply this to the Deferred Action for Parental Accountability memo that effectively nullified section 201(b)(2)(A)(i) of the INA which prohibits citizen minors from sponsoring illegal alien parents for visas.
Importantly for Boehner, the Raines court did “attach some importance” to the fact that the 6 plaintiffs had not been authorized by way of a House resolution. This was also reiterated in Campbell v. Clinton, a case more analogous to the amnesty memo-context because it involved an executive action, rather than an act of Congress. That case involved 31 congressmen suing President Clinton for allegedly violating the War Powers Clause by directing US troops to commit airstrikes on Yugoslavia without congressional authorization. Although the Congressional Research Service has emphasized a line from the Campbell opinion that said congressmen don’t necessarily have standing “whenever a President allegedly acts in excess of statutory authority”, they left out a key explanation for the court, namely it’s “great reluctance” to get involved in disputes between the branches “that involve matters of war and peace.” The war power is almost wholly within the purview of the Commander-in-Chief. With immigration, a wholly legislative matter, Obama’s clearly ignored the limits of executive power which should rise to a “direct confrontation” between the branches.
To meet the voter nullification/direct confrontation standard, Boehner should also focus on Obama’s purported use of “prosecutorial discretion.” Letting it become the norm effectively nullifies future immigration bills that fail to comport with his policy preferences – e.g. to keep importing low-skilled, future Democratic voters – Such a threat is not speculative. Obama has said he has a “pen and a phone” and he can no longer be prevented from suppressing acts of Congress he doesn’t like or unilaterally pushing through initiatives he does. By pushing through DACA, he bypassed 24 separate votes of Congress going back to 2001 that rejected the DREAM Act, all the while admitting on 22 occasions he had no authority to do so. Further, given the breadth of the OLC’s reinterpretation of what the president can now do in the area of immigration, if an executive amnesty can simply be framed as promoting “family-unity” or conserving “limited resources”, it will receive OLC’s rubber stamp.
Finally, the Raines Court noted that congressional plaintiffs failed in part because the Line Item Veto Act could still be open to a constitutional challenge by a private individual “who suffers judicially cognizable injury.” Because of the American public’s notorious lack of standing in challenging the government’s non-enforcement of our immigration laws, this line from Raines should provide added impetus to a federal court to agree to hear the case.
Congress consistently voted on an area of policy wholly within their purview (unlike, the area of war), in the cases of DACA and DAPA it was never questioned by previous presidents, the meaning of those votes was self-evident and they provided Obama with an unambiguous directive which he’s chosen to nullify, creating a “direct confrontation” as a consequence.
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