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The President is Being Sued? Really?

If you have been following recent politics at all, you are probably aware that the Speaker of the House of Representatives, John Boehner, has recently taken steps to file a lawsuit against President Obama. The lawsuit is based on the alleged claim that President Obama has exceeded his constitutional authority when it comes to administering the laws that Congress passes and abused his power to issue executive orders.

In Laymen’s terms, the House of Representatives is suing the President because some Representatives are frustrated that he is using his executive power to pass or not pass laws Congress has already voted on. Boehner has said that the lawsuit will focus on the President’s decision to delay implementation of employer mandates in the Affordable Care Act (Obama Care) which Republicans oppose. The real question here is can they do that? Is the President just as vulnerable to lawsuits as the average citizen? The short answer is no, the long answer is a resounding maybe.

There are several constitutional safeguards in place to protect the President of the United States from lawsuits, and these are hurdles that John Boehner and the House of Representatives will have to get over if their lawsuit has any chance of success. The first of these is that the President is protected from liability for the actions he performs as the nation’s Chief Executive. The 1982 Supreme Court decision Nixon v. Fitzgerald gave the President broad immunity against civil lawsuits for his job-related actions. The theory behind this protection was that subjecting the President, who routinely makes decision that alter the fortunes of millions of citizens, to such lawsuits would cripple his ability to preside effectively and distract him from the responsibilities of his or her office.  The court did make an important distinction between presidential actions and personal ones, but at first glance, it appears that the current lawsuit should fall within this area of presidential immunity since the House is really suing the President for using his executive power.

However, there are other consideration that must be dealt with on this issue. Another important protection given to the President (and the entire federal government for that matter) is sovereign immunity. Essentially, the United States as a sovereign may not be sued unless it has waived its immunity or consented to suit. The United States has waived this immunity to a limited extent already, in regard to the Federal Tort Claims Act and the Tucker Act, which allow for suit if a federal employee causes damage by a wrongful act, or if claims arise out of contracts to which the federal government is a party. Other than these however, the federal government (which includes the President) is essentially immune to suit unless it expressly consents to being sued. While this appears to be another protection for the President, it seems in actuality to provide the very loophole that Congress needs to make such a lawsuit viable. One way for the federal government to waive its immunity or consent to a lawsuit is for Congress to vote on the matter. That is exactly what happened regarding President Obama and the Affordable Care Act. The House passed a bill giving the Speaker authority to sue President Obama which the first time the legislative branch has ever endorsed such a lawsuit. How convenient.

Now that it is clear that the President can technically be sued by the Speaker, the next question is whether John Boehner has standing to bring the suit in the first place. There has always been a constitutional barrier to the courts acting as arbiter of inter-branch disputes between Congress and the White House. The origin is in Article III of the U.S. Constitution, and the Courts interpretation of the limitations spelled out there. Article III states “the judicial power shall extend to all cases…and controversies.” What courts have interpreted this to mean is that a case or controversy refers to a live lawsuit where those on both sides have something genuinely in dispute that is capable of being decided by rules of law. Essentially this means that the courts do not give advisory opinions on how laws or the Constitution are to be interpreted and refuse to decide what is commonly referred to as “political questions” which are issues that are more appropriately handled by the political branches: Congress and the Executive branch. Therefore, unless Boehner can show that his lawsuit is more than just a political question regarding the appropriate use of the President’s executive power, the likely outcome will be a polite refusal to hear the case.

Ultimately, while it may be possible for the Speaker of the House of Representatives to sue the President of the United States, it seems unlikely that lawsuit will flourish.  First, presidential immunity exists for any actions performed as the holder of the executive office. While Boehner may not like the actions President Obama is taking, it cannot be denied that they are job-related executive actions. Second, even if the lawsuit is filed, Boehner must still show that he has standing for the case to be considered. Boehner will have to be able to show that Congress has suffered quantifiable damages resulting from the President’s alleged improper use of executive power. Otherwise, the lawsuit will probably not overcome the political question issue, and the court in which it is filed may choose to not hear the case at all. If all these matters can be properly addressed, Boehner would still face the formidable task of actually prevailing in his suit, a prospect that is daunting to say the least.

Check out the links below if you would like to know more about the pending lawsuit or the President’s immunity protections:





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