I usually stay away from directly commenting on political matters here, but because this involves the law I figure it’s fair game. This is a good teaching moment, actually. Misunderstandings about how the law works are rampant. I hope I can nuke one of those misunderstandings here.
We’ve heard recently that Speaker of the House John Boehner (R-OH) intends to “sue President Obama” for breaching his oath to uphold and defend the Constitution. As I understand it, the Speaker is upset that the President has used various executive orders to try to accomplish things when the dysfunctional Congress cannot. He’s also upset that the President has chosen not to enforce certain federal laws.
While Speaker Boehner’s rhetoric has been getting attention, his idea is woefully short on details. He hasn’t identified a single specific thing. Maybe he will later on.
The bigger problem here is that there may not be grounds for a lawsuit at all. This can be a hard concept to understand. We’ve all been outraged at times about something we’ve heard about. Sometimes we’ve even mused that we “ought to sue” whoever is responsible for the outrage. Before picking up the phone to call a lawyer, however, it can be wise to step back and look at the situation carefully.
Stand by me
The law requires that a plaintiff have what is called standing to sue. Standing can be a little hard to explain, but once you understand it then it’s usually pretty easy to figure out if a person has standing or not. The first part of standing means that the plaintiff has a sufficient stake in the controversy. In other words, does the plaintiff have a real interest in the controversy sufficient to create an issue that the court can resolve? Put another way, is this plaintiff the right person to bring the lawsuit? In Speaker Boehner’s case, he may have a genuine concern about the controversy, but I’m not so sure he has a sufficient stake. He (or whoever the plaintiffs are) will have to show that they have somehow been affected by the President’s actions or inactions. (Being annoyed is not the same as being affected. It might be annoying that I build a house that blocks your view of the lake. But if I steal bricks from your house to build mine, that’s an entirely different situation that would give rise to standing.)
The second part of standing requires that the plaintiff actually suffer some legal injury that can be remedied by the court. No legally recognizable injury, no standing. An example may help. Let’s say the local school board passes a rule requiring students to pray in school. If I have a child in that school, I would have standing to challenge the rule because it adversely affects my child if I object. But if I don’t have a child in that school, the rule doesn’t affect me or my child, so I probably wouldn’t have standing to object.
In Speaker Boehner’s case, it’s hard for me to tell whether he or his colleagues would actually have been adversely affected by the President’s actions. Let’s look at another example to clarify this. The Supreme Court ruled last month that the President’s so-called recess appointments to the National Labor Relations Board were not in compliance with the Constitution’s provisions. The Constitution says exactly when a president can make recess appointments, and the Court concluded that those circumstances didn’t exist at the time of the appointments. (That’s grossly oversimplified, but it will do for now.)
Would Speaker Boehner and his colleagues have had standing to challenge that presidential appointment? Most likely not, since the appointment didn’t do anything other than cause them consternation. (If experiencing consternation was all that was required to file a lawsuit, every lawyer I know would have much more work than he or she could possibly handle.) So who did challenge the appointment? It turns out it was a person who lost a ruling before the NLRB. He was able to say that the ruling should not be enforceable because the President didn’t have the power to appoint one of the board members. If the board was not properly appointed, its actions cannot stand. The Supreme Court agreed that the aggrieved party before the NLRB suffered a cognizable injury as a result of the President’s improper appointment.
Here’s one more example. The Americans With Disabilities Act of 1990 says that places such as retail stores have to be set up in a way that people using wheelchairs can use the place. We’ve all seen handicapped restroom facilities. Let’s say I run across a store whose restrooms are not ADA-compliant. I do not have a physical disability, so therefore I would not have standing to sue for an ADA violation. As much as it might bother me that the restroom is not compliant, I can still use the restroom successfully without the ADA-required items. I cannot sue on someone else’s behalf. If I was wheelchair bound, however, I would have standing to sue since the lack of grab bars would prevent me from using the restroom.
We all know that politics is merely a form of the Theatre of the Absurd, and threats to sue the President are one way of throwing red meat to a hungry base of voters. At the same time, however, as citizens of the U.S., we ought to know enough to understand whether the suit is something serious or merely Act III in the never ending drama. My conclusion is, without knowing more, Speaker Boehner is delivering his Shakespearean soliloquy. Hey, maybe if he holds up a skull á la Hamlet, it would be Boehner in a boneheaded scene! [Even without reading this, I’m sure my wife is rolling her eyes at my claimed cleverness.]