House Speaker John Boehner announced plans this week to file a lawsuit against President Obama in response to what Boehner says is the president’s misuse of executive authority.
“The Constitution makes it clear that a president’s job is to faithfully execute the laws,” said Boehner, R-Ohio. “In my view, the president has not faithfully executed the laws.”
But how do you actually go about suing the President of the United States?
Step 1 – Allege Presidential Overreach
At the moment this is all that Boehner has really done.
Boehner cited health care, energy, foreign policy and education as areas where the president has over-stepped his bounds, but has not yet specified which executive orders he plans to challenge.
Step 2 - Meet BLAG
Boehner’s memo stated that the speaker “would authorize the House of Representatives — through the House General Counsel and at the direction of the Bipartisan Legal Advisory Group (BLAG) — to file suit in the coming weeks.”
BLAG is an advisory committee consisting of House leadership. Its current members are Speaker John Boehner, Majority Leader Eric Cantor, Majority Whip Kevin McCarthy, Minority Leader Nancy Pelosi and Minority Whip Steny Hoyer — three Republicans and two Democrats.
BLAG only requires a simple majority vote to authorize the general counsel to represent the House. At which point, the general counsel (directed by BLAG) could proceed with Speaker Boehner’s lawsuit.
Step 3 – Establish Legal Standing in Court and Argue the Case
“The case would likely be brought to the D.C. Circuit Court,” said Jonathan Turley, law professor at George Washington University.
“The greatest challenge will be getting past the motion to dismiss based on standing,” Turley told ABC News.
BLAG would be required to demonstrate “standing” in court on behalf of the House of Representatives. According to Turley, in order to demonstrate standing, the plaintiffs “would need to show that [they] have injury.”
Turley represented an independent group of legislators who challenged the authority of the president to authorize the use of U.S. military force during the 2011 Libyan conflict. The case was dismissed by the D.C. Circuit Court due to the plaintiff’s inability to establish standing.
However, Boehner’s authority via BLAG could be the critical difference between this and previous suits. In Windsor v. the United States, Supreme Court Justices Anthony Kennedy and Samuel Alito left the door open for BLAG to have standing in future cases — accommodating Turley’s assessment that the case might not be thrown out merely on these grounds alone.
Step 4 – Accomplish the Never-Before-Accomplished
If Boehner could successfully establish “standing,” the House would then be able to begin arguing its case against President Obama. Such an achievement is unprecedented in judicial history, and would most likely prove challenging.
“It seems to me that these suits are largely for political value. However, the extent of the president’s constitutional power to ensure that the laws be ‘faithfully executed’ is an open question,” said Frank Anechiarico, professor of law and government at Hamilton College.
“Even the conservatives on the Supreme Court — particularly Scalia — are reluctant to get in the middle of a political fight between the president and the Congress, unless the stakes are much higher than anything currently detectable,” Anechiarico said. ”But all it takes is for one district judge to rule otherwise and we’re off and running.”