Wednesday, July 2, 2014

Constitutional Law History: Can Congress sue the President?

The answer: we might be about to find out.

Article here.
The good news for the House GOP is that courts have never said a congressional chamber may not sue the president for usurping legislative powers.

The bad news is they’ve never agreed to hear to such a case either. And scholars interviewed say they’re skeptical a court will make such a move anytime soon. Mr. Obama himself has brushed off the legal threat: “They’re not doing anything, and then they’re mad at me for doing something,” he said last week.

The problem is (or will be) whether the House has standing. What is standing? It means that the plaintiff has to have suffered something - a wrong - at the hands of the defendant. It's one of the basic steps of a lawsuit. In Constitutional Law terms, the plaintiff (or a group that is taking the plaintiff's shoes, like when an environmental group sues on behalf of its members) has to have suffered a wrong, the wrong must be "ripe" (called "mootness," or still needing to get a remedy from the court), and the court must be able to address the wrong (because the courts don't like to give advisory opinions, they prefer to settle something between actual parties).

Con Law was one of my favorite subjects, and this fact pattern seems like something out of an exam question, maybe for 5-10 points on a final exam. 

1 comment:

  1. If I were to write that exam question, it would be something like this:
    Decide and discuss this petition for certiorari: the Congress has had multiple acts become stalled when they are just short of being enacted, due to the president failing to act. The Congress decides to sue the President for misuse or non-use of his executive powers. As the court, how do you analyze the plaintiff's case?
    Of course, I would have to muck it up with other facts, like the details of the acts, just to mislead the exam takers.