Authorization to Initiate Litigation for Actions By the President

Floor Speech

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Ms. JACKSON LEE. I thank the gentlewoman very much, and I rise to oppose H. Res. 676, which is seeking an unconstitutional right to sue the President for doing his duty and following the law.

The underbelly of this resolution would, in essence, put fire in the hearts and minds of Americans when we find out that this legislation is to undermine the President and any of his officers and employees from doing their jobs.

This is a failed attempt to impeach the President. I am willing to say that word because the President has been following the law. The law passed, and it gives him discretion to interpret the Affordable Care Act to make it best work for the American people. As has been stated, if you want to change the law, go to the floor of the House. But in actuality, this resolution smacks against the Constitution which says there are three equal branches of government. Therefore, the Executive has the right to perform his duties.

I ask my colleagues to oppose this resolution for it is, in fact, a veiled attempt for impeachment, and it undermines the law that allows the President to do his job. It is a historical fact that President Bush pushed this Nation into a war that had little to do with apprehending terrorists. We did not seek an impeachment of President Bush because as an Executive, he had his authority. President Obama has the authority.

I would ask my colleagues on the other side of the aisle to, in essence, provide the opportunity for us to do valid things for the American people--improve the minimum wage, paycheck fairness--and stop undermining the authority as indicated in the Constitution that gives equal authority to the three branches of government.

We can pass laws. We have the ability to pass laws, and citizens have the right to go into court on their independent standing. The courts have often said that the Congress has no standing. The House of Representatives has no independent standing, as evidenced by many cases that we have already taken to court and determined that Congress has no standing.

The doctrine of standing is a mix of constitutional requirements, derived from the case or controversy provision in article III, and prudential considerations, which are judicially created and can be modified by Congress.

That dictates on how you gain standing, and I would say the constitutionally based elements require that plaintiffs have suffered a personal injury-in-fact, which is actual, imminent, concrete, and particularized. The injury must be fairly traceable to the defendant's conduct and likely be redressed by the relief requested from the court.

Let me be very clear. We in Congress can make no argument that the President has injured us. We can make no independent argument of that, and so I ask my colleagues to oppose this resolution and do not accept a veiled attempt at impeachment when our President is doing his duty and following the law under the Constitution of the United States of America.

Mr. Speaker, I rise to speak in opposition to H. Res. 676, providing for authority to initiate litigation for actions by the President or other Executive Branch officials inconsistent with their duties under the constitution of the United States.

We could be doing some very important legislation to help the American people from Texas to the tip of Maine, like Comprehensive Immigration Reform, the Appropriations Border Supplemental, comprehensive tax reform, the Export-Import Bank Reauthorization, or the Voting Rights Act, yet my Republican colleagues insist on wasting valuable time.

The Congressional Black Caucus did a Special Order earlier this week entitled: the GOP's March Towards Impeachment, and that is where we appear to be headed.

But first let me make a distinction between impeachment and a lawsuit initiated by the House, qua House of Representatives, via H. Res. 676.

Article II, Section 4 of the United States Constitution states:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

In any impeachment inquiry, the Members of this branch of government must confront some preliminary questions to determine whether an impeachment is appropriate in a given situation.

The first of these questions is whether the individual whose conduct is under scrutiny falls within the category of President, Vice President, or ``civil Officers of the United States'' such that he is vulnerable to impeachment.

A preliminary question is whether the conduct involved constitutes ``treason, bribery, or other high crimes or misdemeanors.''

Now Mr. Speaker, whether we get to this point where we are actually considering impeachment of the President is a question that only the GOP majority can answer. It appears that we are heading in that direction--even in the face of doubt from numerous experts as to whether the effort will succeed or not.

Indeed, it is a matter of historical fact that President Bush pushed this nation into a war that had little to do with apprehending the terrorists of September 11, 2001; and weapons of mass destruction, ``WMD's'' have yet to be found.

House Democrats refused to impeach President Bush.

Let me state that again: House Democrats refused to impeach President George W. Bush.

Now I wish to turn to the resolution which the GOP Majority intends to put before this body in a last-ditch effort to stir their base before November.

Former Solicitor General Walter Dellinger testified before the Rules Committee two weeks ago and had this to say about the potential lawsuit:

The House of Representatives lacks authority to bring such a suit. Because neither the Speaker nor even the House of Representatives has a legal concrete, particular and personal stake in the outcome of the proposed lawsuits, federal courts would have no authority to entertain such actions.

Passage of the proposed resolution does nothing to change that. If federal judges were to undertake to entertain suits brought by the legislature against the President or other federal officers for failing to administer statutes as the House desires, the result would be an unprecedented aggrandizement of the political power of the judiciary.

Such a radical liberalization of the role of unelected judges in matters previously entrusted to the elected branches of government should be rejected.

My colleagues on the other side argue that lawsuits by Congress to force the administration to enforce federal laws will prevent the President from exceeding his constitutional authority,

But the Supreme Court has constantly held that the exercise of executive discretion being taken by President Obama is within the President's powers under the Constitution.

The doctrine of standing is a mix of constitutional requirements, derived from the case or controversy provision in Article III, and prudential considerations, which are judicially created and can be modified by Congress.

The constitutionally based elements require that plaintiffs have suffered a personal injury-in-fact, which is actual, imminent, concrete and particularized. The injury must be fairly traceable to the defendant's conduct and likely to be redressed by the relief requested from the court.

CONSTITUTIONAL REQUIREMENTS

To satisfy the constitutional standing requirements in Article III, the Supreme Court imposes three requirements.

The plaintiff must first allege a personal injury-in-fact, which is actual or imminent, concrete, and particularized.

Second, the injury must be ``fairly traceable to the defendant's allegedly unlawful conduct, and'' third, the injury must be ``likely to be redressed by the requested relief.''

PRUDENTIAL REQUIREMENTS

In addition to the constitutional questions posed by the doctrine of standing, federal courts also follow a well-developed set of prudential principles that are relevant to a standing inquiry.

Similar to the constitutional requirements, these limits are ``founded in concern about the proper--and properly limited--role of the courts in a democratic society,'' but are judicially created.

Unlike their constitutional counterparts, prudential standing requirements ``can be modified or abrogated by Congress.''

If separation-of-powers principles require anything, it is that each branch must respect its constitutional role.

When a court issues a decision interpreting the Constitution or a federal law, the other branches must abide by the decision.

The executive branch's ability to fulfill its obligation to comply with judicial decisions should not be hampered by a civil action by Congress pursuant to this bill as my amendment to H.R. 4138, the ENFORCE ACT made clear.

And Mr. Speaker, a basic respect for separation of powers should inform any discussion of a lawsuit from both a constitutional standpoint and a purely pragmatic one.

In our constitutional democracy, taking care that the laws are executed faithfully is a multifaceted notion.

And it is a well-settled principle that our Constitution imposes restrictions on Congress' legislative authority, so that the faithful execution of the laws may present occasions where the President declines to enforce a congressionally enacted law, or delays such enforcement, because he must enforce the Constitution--which is the law of the land.

This resolution, like the bill we considered in the Judiciary Committee on which I serve and before this body, the H.R. 4138, The ENFORCE Act, has problems with standing, separation of powers, and allows broad powers of discretion incompatible with notions of due process.

The legislation would permit one House of Congress to file a lawsuit seeking declaratory and other relief to compel the President to faithfully execute the law.

These are critical problems. First, Congress is unlikely to be able to satisfy the requirements of Article III standing, which the Supreme Court has held that the party bringing suit have been personally injured by the challenged conduct.

In the wide array of circumstances incident and related to the Affordable Care Act in which the resolution would authorize a House of Congress to sue the president, that House would not have suffered any personal injury sufficient to satisfy Article III's standing requirement in the absence of a complete nullification of any legislator's votes.

Second, the resolution violates separation of powers principles by inappropriately having courts address political questions that are left to the other branches to be decided.

And Mr. Speaker, I thought the Supreme Court had put this notion to rest as far back as Baker v. Carr, a case that hails from 1962. Baker stands for the proposition that courts are not equipped to adjudicate political questions--and that it is impossible to decide such questions without intruding on the ability of agencies to do their job.

Third, the resolution makes one House of Congress a general enforcement body able to direct the entire field of administrative action by bringing cases whenever such House deems a President's action to constitute a policy, of non-enforcement.

This bill attempts to use the notion of separation of powers to justify an unprecedented effort to ensure that the laws are enforced by the President--and I say one of the least creative ideas I have seen in some time.

Mr. Speaker, I ask my colleagues to deliberate before we are at a bridge too far.

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