Suing Boehner Would Give Him Grief, But The Case Would Be Laughed Out Of Court

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Surely, the House Republicans’ conduct begs for a lawsuit. With them rarely showing up for work, their dereliction of duty, their obstructionism and their holding America hostage, there has to be a lawsuit in there somewhere.

They voted 50-odd times to defund and repeal Obamacare, voted to waste money on a frivolous law suit, and passed two bills to show they can strong arm children. Republicans spent the rest of their time attacking and obstructing the President. Before skipping town, Republicans voted to sue the President for acting alone, then, when they proved incompetent to pass one of their own bills, demanded that he act alone.

If only we could hold them legally accountable.

Any suit against Boehner needs to clear a couple of hurdles. Lawyers would call them standing and immunity — loosely speaking, whether Boehner caused harm a court could fix and whether he can get away with it anyhow.

To jump the standing hurdle, one would first have to show that Boehner’s actions or lack of them directly hurt the individual. Article 3, Section 2 of the U.S. Constitution says, “The judicial Power shall extend to all Cases, in Law and Equity.” To have a case, someone has to be hurt before he or she can sue. The courts can’t express an opinion willy-nilly and get the police agencies to enforce it. Also, that hurt has to be something that can be fixed by a court decision. A court can tell a wife-beater to quit beating his wife and to pay her money, for example.

There is a particular kind of standing known as “taxpayer standing.” This allows suing a taxing body if it allocates funds in a way the taxpayer feels is improper. Since the Supreme Court ruled that ACA premiums are a tax, the House’s votes to defund it are arguably easy targets for a variation of taxpayer standing. The problem is that taxpayer standing asserts that liability for the tax itself is a harm. But a suit against Boehner claims a harm from something different: the consequences of being denied access to healthcare. Taxpayer standing does not address that kind of harm.

Also in the context of harm, a member of Congress lacks the standing needed to sue Boehner. In Raines v. Byrd, the Supreme Court held that generally a plaintiff must allege a personal injury that is “particularized, concrete, and otherwise judicially cognizable”

In Raines, the plaintiffs claimed that an act of Congress caused harm to the institution itself and therefore affected all members of Congress equally.

The Court noted: “their claim is based on a loss of political power, not loss of something to which they are personally entitled, such as their seats as Members of Congress after their constituents elected them.” The Court argued that the institutional injury argument fails because the plaintiffs’ claim only shows “abstract dilution of institutional power.”

The Court also pointed to the Pandora’s box of problems that a broader standard for standing would unleash. It cited several historical examples involving presidents and one involving an Attorney-General.

What would be the fix if someone sued Boehner? Might a court order the House of Representatives to pass a bill? No, for that raises clear separation of powers issues. A court could no more order that than the House of Representatives could pass a law requiring the Supreme Court to change one of its decisions. Even if a court did order the House of Representatives to pass a bill, it would be meaningless without Senate concurrence and the President’s signature, which might or might not happen.

Moreover, if we can jump the hurdle of standing, immunity presents a much greater challenge. True, our leaders are not completely safe from being sued. At the same time, though, if they’re going to do their work well, they can’t spend all their time fending off lawsuits. The Constitution provides a protection to that end under the Speech and Debate Clause: “For any Speech or Debate [Members of Congress] shall not be questioned in any other Place.”

When the courts interpreted this clause, they have found that it is based on something broader than mere freedom of speech. It is built on the idea that legislators must be free to carry out all their functions not just physically speaking on the floor of the House or Senate. Decades ago, the Supreme Court quoted,with approval, a Massachusetts case dating to the waning days of the Founding Generation. The Massachusetts Chief Justice said that legislative immunity is meant “to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal.” Think about that word, “functions.” It is impossible for Congress to decide on every good law that each person needs, even if it had the power, resources and time to do so. Thus, Congress must decide what to decide — that’s one of its functions. So, if Boehner decides that the House of Representatives won’t consider a law to help people, that, unfortunately, is part of his job.

Cornell Law points to several cases that explain the scope of the clause.

Committee reports, resolutions, and the act of voting are equally covered, as are things generally done in a session of the House by one of its members in relation to the business before it. Thus, so long as legislators are acting in the sphere of legitimate legislative activity, they are protected not only from the consequence of litigation’s results but also from the burden of defending themselves. (internal quotation marks and citations deleted.)

Of course, for every rule there is an exception and immunity is no different. The exceptions to immunity are serious crimes, treason, and breaches of the peace. The best fitting exception would be serious crimes, specifically, something along the lines of accepting bribes by way of campaign donations, dark money etc. to defund and repeal the ACA. Bribes by their very nature are not legislative activities. Even so, Boehner could be prosecuted for taking the bribe but he would remain immune for his actions to kill the ACA.

That’s a little on what the Constitution has to say about immunity for what Boehner DOES, but common law offers another idea: Boehner is immune because of who he IS. This is known as “absolute immunity.” In Mitchell v. Forsyth, the Supreme Court drew on common law to give lawmakers, including Boehner “absolute immunity.”

The Shriver Center explains the concept and rationale of absolute immunity.

“Absolute immunity bars any action against officials in the conduct of their office even for actions taken maliciously or in bad faith. Absolute immunity focuses on the governmental functions being performed and the nature of the responsibilities of the official, not on the specific action taken.”

In other words, while there is a bounty of evidence to prove that Boehner’s actions were malicious in the name of making the President look bad and out of general contempt for Americans who are not part of the 1%, because of who he is, the law protects him legal accountability.

The only way around absolute immunity would be to show that Boehner was not acting as a legislator. At best, one can try to suggest that by suing the President, Boehner took off his Congressman Boehner hat and replaced it with his Citizen Boehner hat. His latest shenanigans make that tack impossible, though. House Resolution 676 lets him sue “on behalf of the House of Representatives.” Thus, he could not sue as a private citizen and would therefore keep absolute immunity.

Despite all this legal mumbo-jumbo, it all seems so unfair. People are hurting, and if Boehner sues Obama, why can’t someone sue Boehner? More correctly, if Boehner sues the President, is Boehner giving up his immunity?

Unfortunately, no. Rights are so precious that the courts generally don’t automatically assume that people throw them away. A court needs to see that a person was told he might lose a right, then see him do something that clearly means he voluntarily gave up that right. You may recall, Issa tried to penalize Lois Lerner by suggesting that she waived her right to remain silent by elaborating on how innocent she was. But as Ranking Member John Lewis noted, Issa needed to warn Ms. Lerner that she had to answer or be penalized, which he didn’t do.

The same scenario might play out with Boehner. If a court warns Boehner that his case against Obama nixes congressional immunity and Boehner withdraws the case, Boehner maintains his immunity for himself and the rest of the House of Representatives. But why would a court even think about warning him? It’s an obscure point, too obscure to expect a court to mention it. Yet unless that to-and-fro happens, Boehner and the House keep their immunity.

In short, a suit against Boehner and House Republicans would be as frivolous as Boehner’s suit against the president. However, we still have the ballot box.

Image: Quiet Mike