Charlie Savage obtained a copy of the memo Speaker Boehner distributed to House Republicans discussing the basis for a suit agains the Obama Administration. Here is the intro:
On one matter after another during his presidency, President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce – at times even boasting about his willingness to do it, as if daring the America people to stop him. On matters ranging from health care and energy to foreign policy and education, President Obama has repeatedly run an end-around on the American people and their elected legislators, straining the boundaries of the solemn oath he took on Inauguration Day.
Presidents have traditionally been granted a degree of latitude with respect to the enforcement of the law, and tension between the branches of our government is hardly new. But at various points in our history when the Executive Branch has attempted to claim for itself the ability to make law, the Legislative Branch has responded, and it is only through such responses that the balance of power envisioned by the Framers has been maintained.
President Obama’s aggressive unilateralism has significant implications for our system of government, and presents a clear challenge to our institution and its ability to effectively represent the people.
If the current president can selectively enforce, change or create laws as he chooses with impunity, without the involvement of the Legislative Branch, his successors will be able to do the same. This shifts the balance of power decisively and dangerously in favor of the presidency, giving the president king-like authority at the expense of the American people and their elected legislators.
And as reported, Boehner will convene the BLAG to file suit. This is similar to the process used to defend DOMA after the President failed to.
I intend to bring to the floor in July legislation that 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 in an effort to compel the president to follow his oath of office and faithfully execute the laws of our country. The legislation would follow regular order and be considered by the Rules Committee following its introduction, prior to its consideration by the full House.
Here, Boehner relies on the framework articulated by David Rivkin and Elizabeth Price Foley:
Under our system of government, the Judicial Branch has the power to resolve disputes between the Executive and Legislative Branches. When there is a failure on the part of the president to faithfully execute the law, the House has the authority to challenge this failure in the Judicial Branch by filing suit in Federal Court in situations in which:
- There is no one else who can challenge the president’s failure, and harm is being done to the general welfare and trust in faithful execution of our laws;
- There is no legislative remedy; and
- There is explicit House authorization for the lawsuit, through a vote authorizing the litigation against the president’s failure.