Boehner's Lawsuit Against Obama is a Loser

  • Posted by a hidden member.
    Log in to view his profile

    Jul 16, 2014 12:48 AM GMT
    Eric Posner, son of legendary jurist Richard Posner, weighs in on Boehner's planned lawsuit against President Obama. He discusses how it would fall flat on its face due to the Constitutional setup of the Executive Branch:

    "Courts have repeatedly held, in the Supreme Court’s words, that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” To understand this principle, one must first recognize that technical violations of the law vastly outstrip the resources of the executive to go after them. People speed on the highways, smoke dope, and cheat on their taxes in vast numbers. Corporations pollute, defraud investors, and evade taxes. More than 10 million people illegally reside in the country, most of them illegally employed by individuals and businesses. The executive branch lacks the resources to investigate, catch, and prosecute all these people. It simply can’t.

    So the government must make choices. Many of those choices—like spending more resources on investigating murders than on burglaries—are uncontroversial. But others quickly take on politically charged overtones. What if the government says that it will investigate cocaine dealers but not marijuana sellers, because marijuana possession is not as serious? Or that it will use most immigration resources to deport undocumented immigrants who commit violent crimes because they are more dangerous than those who do not?

    Perhaps these are “policy” judgments of the sort that should be made by Congress. There is a pervasive slippery-slope worry that if the president can refrain from enforcing immigration laws against DREAM-ers, then he can also refuse to enforce corporate taxes (if he is a Republican) or laws that give mining firms access to mineral resources on public lands (if he is a Democrat). Indeed, if you accept the principle of prosecutorial discretion in the broadest sense, the president could decline to enforce campaign finance laws against his supporters, or instruct his subordinates to violate the law and refuse to prosecute them. Indeed, President Obama did refuse to prosecute Bush administration officials who appear to have violated laws against torture and surveillance. (The Republicans don’t seem to be upset about this particular exercise of presidential discretion.)"

    http://www.slate.com/articles/news_and_politics/view_from_chicago/2014/07/boehner_s_lawsuit_against_obama_is_a_loser_because_of_american_ideas_about.html


    That being said, I don't believe such a suit would even be addressed under the merits. It would most likely be dismissed under the political question doctrine.
  • WrestlerBoy

    Posts: 1903

    Jul 16, 2014 11:03 PM GMT
    libertpaulian saidEric Posner, son of legendary jurist Richard Posner, weighs in on Boehner's planned lawsuit against President Obama. He discusses how it would fall flat on its face due to the Constitutional setup of the Executive Branch:

    "Courts have repeatedly held, in the Supreme Court’s words, that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” To understand this principle, one must first recognize that technical violations of the law vastly outstrip the resources of the executive to go after them. People speed on the highways, smoke dope, and cheat on their taxes in vast numbers. Corporations pollute, defraud investors, and evade taxes. More than 10 million people illegally reside in the country, most of them illegally employed by individuals and businesses. The executive branch lacks the resources to investigate, catch, and prosecute all these people. It simply can’t.

    So the government must make choices. Many of those choices—like spending more resources on investigating murders than on burglaries—are uncontroversial. But others quickly take on politically charged overtones. What if the government says that it will investigate cocaine dealers but not marijuana sellers, because marijuana possession is not as serious? Or that it will use most immigration resources to deport undocumented immigrants who commit violent crimes because they are more dangerous than those who do not?

    Perhaps these are “policy” judgments of the sort that should be made by Congress. There is a pervasive slippery-slope worry that if the president can refrain from enforcing immigration laws against DREAM-ers, then he can also refuse to enforce corporate taxes (if he is a Republican) or laws that give mining firms access to mineral resources on public lands (if he is a Democrat). Indeed, if you accept the principle of prosecutorial discretion in the broadest sense, the president could decline to enforce campaign finance laws against his supporters, or instruct his subordinates to violate the law and refuse to prosecute them. Indeed, President Obama did refuse to prosecute Bush administration officials who appear to have violated laws against torture and surveillance. (The Republicans don’t seem to be upset about this particular exercise of presidential discretion.)"

    http://www.slate.com/articles/news_and_politics/view_from_chicago/2014/07/boehner_s_lawsuit_against_obama_is_a_loser_because_of_american_ideas_about.html


    That being said, I don't believe such a suit would even be addressed under the merits. It would most likely be dismissed under the political question doctrine.


    It won't even get to a question of justiciability; they don't even have standing to even bring the suit, as the House has not been injured as an institution, as Lawrence Tribe has been pointing out.