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With his decree on amnesty, Obama has provoked a “direct confrontation.”

Last week House Speaker John Boehner raised the possibility of launching a lawsuit against the Obama administration as one way of beating back the president’s latest executive decree on amnesty. He’s suggested that the suit would not be launched by individual congressional members but by the House as a bloc through an authorizing resolution, similar to last July’s Obamacare challenge . Courts seem more agreeable to the resolution route when granting legal standing, which has always been a difficult area in congressional suits. But the case law in this area is far from certain, and Boehner and his attorneys should be fully prepared for a tough fight.


A big question the courts haven’t directly tackled is to what extent congressional plaintiffs are required to show “institutional injury” in order to get the judge to hear their full case. When congressional members have sued individually claiming institutional injury, they’ve generally had to show that their votes were completely “nullified,” meaning that they have no recourse outside a lawsuit and that there was “actual confrontation” with the executive.

So far, in cases where the House passed a resolution to sue, the courts haven’t followed a “voter nullification” inquiry, because the complaint has “institutional authorization.” What may be a problem, however, is that in each of those cases the institutional harm in question involved a party (such as the White House or a corporation) refusing to abide by a congressional subpoena. In such cases, when Congress’s request for documents or witness testimony is refused, it’s obvious that their congressional powers have been nullified and that they have little recourse except to sue.


If Boehner’s team is required to jump this nullification hurdle, two relatively recent cases involving suits by individual members will be key. In Raines v. Byrd (1997), six individual members claimed that the Line Item Veto Act, which let the president “cancel” items in congressionally passed appropriations bills, “dilute[d] their Article I voting power.” The court ruled that this was a mere “abstract dilution of institutional legislative power” and that they had to show a more concrete example of voter nullification.

Central to the court’s argument was that the vote of the six plaintiffs against the bill had been “given full effect” and that they had “simply lost that vote.” Further, the court said, the members could have “repealed the Act” or “exempted appropriations bills from its reach.” The Line Item Veto Act would seem to offer little analogy to Obama’s amnesty memos, however, and as the Congressional Research Service has noted, Raines did not “eliminate a Member’s ability to establish standing to challenge an executive action.”



According to the Raines court, crucially the six plaintiffs failed to show that they voted against a specific bill, that there were sufficient votes to kill it, and that it was nonetheless implemented by the executive. This would appear to apply to the DREAM Act, which was killed 24 times in Congress but nonetheless implemented by the executive through the Deferred Action for Childhood Arrivals (DACA) program. In addition, Boehner’s attorneys could apply the reasoning in Raines to the Deferred Action for Parental Accountability (DAPA) — specifically, to the memo that effectively nullifies section 201(b)(2)(A)(i) of the Immigration and Nationality Act, which prohibits citizen minors from sponsoring illegal-alien parents for visas.

Significantly for Boehner, the Raines court did “attach some importance” to the fact that the six plaintiffs had not been authorized by way of a House resolution. This was also reiterated in Campbell v. Clinton (2000), a case more analogous to the amnesty-memo context because it involved an executive action rather than an act of Congress. That case involved 31 congressmen suing President Clinton for allegedly violating the War Powers Clause by directing U.S. troops to commit airstrikes on Yugoslavia without congressional authorization.


Citing a line from the Campbell opinion, the Congressional Research Service has emphasized that congressmen don’t necessarily have standing “whenever a President allegedly acts in excess of statutory authority,” but it omitted that the court also explained its “great reluctance” to get involved in inter-branch disputes “that involve matters of war and peace.” The war power is almost wholly within the purview of the commander-in-chief. With immigration, a wholly legislative matter, Obama clearly ignored the limits of executive power, raising his conduct to the level of a “direct confrontation” between the branches.


To meet the standard of voter nullification and direct confrontation, Boehner should also address Obama’s purported use of “prosecutorial discretion.” Letting it become the norm effectively nullifies future immigration bills that fail to comport with his policy preferences, such as his aim to keep importing low-skilled workers (who are also potential Democratic voters).

Such a threat is not speculative. Obama has said he has a “ pen and a phone ” and that he can no longer be prevented from suppressing acts of Congress he doesn’t like or from unilaterally pushing through initiatives he does. By pushing through DACA, he bypassed 24 separate votes of Congress, going back to 2001, against the DREAM Act, even though on 22 occasions he admitted that he had no authority to do so. Further, the Office of Legal Counsel at the Justice Department has reinterpreted so broadly what the president can now do in the area of immigration that it will rubber-stamp any executive amnesty if it can be framed simply as promoting “family unity” or conserving “limited resources.”

Finally, the Raines court noted that congressional plaintiffs failed in part because the Line Item Veto Act could still be open to a constitutional challenge by a private individual “who suffers judicially cognizable injury.” Because of the American public’s lack of standing in challenging the government’s non-enforcement of our immigration laws, this line from Raines should provide added impetus to a federal court to agree to hear the case.


In the cases of DACA and DAPA, Congress consistently voted on an area of policy wholly within its purview and in that was never questioned by previous presidents. The meaning of those votes was self-evident. They provided Obama with an unambiguous directive that he’s chosen to nullify, creating, in consequence, a “direct confrontation.”

— Ian Smith is an attorney in Washington, D.C. and blog contributor for the Immigration Reform Law Institute.