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The U.S. House of Representatives recently voted to sue President Barack Obama for allegedly overstepping the powers of his office.
While the suit raises thorny legal questions about the limits of presidential power, it’s also being used by both sides to fire up their base in advance of the midterm elections. The suit, spearheaded by House Speaker John Boehner, R-Ohio, was approved largely along party lines. Democrats argued that it’s an example of the Republican majority playing politics rather than tackling urgent policy issues, such as immigration.
Indeed, House Minority Leader Nancy Pelosi, D-Calif., used the looming vote to approve the suit in a recent fundraising pitch, as reported by NBC News.
"Boehner is planning a vote to sue the president," Pelosi wrote. "The House of Representatives has never sued a sitting president in all of U.S. history. And if they do it, impeachment may very well be the next step."
We wondered whether Pelosi is correct that "the House of Representatives has never sued a sitting president in all of U.S. history."
We found that she’s right the House as a whole has never sued the president. However, we think it’s worth noting that individual lawmakers and groups of lawmakers have sued the president in the past -- frequently. In fact, we found at least 14 instances in the last four decades alone.
This doesn’t make Pelosi’s carefully worded claim inaccurate, but it's worth adding important context.
We should note that these challenges to presidential authority generally failed, particularly challenges over whether Congress or the president has the right to initiate military action. Often, the suits’ Achilles heel was the courts’ determination that the lawmakers lacked the "standing" -- basically, a demonstrable injury -- to file such a suit. This succession of negative rulings for Congress has presented the plaintiffs against Obama with an uphill legal climb, analysts say.
Here’s a rundown of the 14 lawsuits we found:
• Senate Select Committee on Presidential Campaign Activities vs. Nixon (1974). This was one of the Watergate-era cases involving what evidence President Richard Nixon had to turn over to investigators that heightened the pressure on Nixon to resign.
• Drummond vs. Bunker (1977). William R. Drummond, a citizen of the Panama Canal Zone, sued President Jimmy Carter to stop his administration from negotiating about handing over the then-U.S.-held canal zone to Panama, arguing that only Congress possessed that right. Six members of Congress intervened in the case alongside Drummond, arguing that the executive branch was depriving them of their constitutionally protected vote.
• Crockett vs. Reagan (1982). Sixteen senators and 13 House members asked a federal court to rule that the dispatching of several dozen U.S. military personnel to El Salvador by President Ronald Reagan contradicted Congress’s war powers and the Foreign Assistance Act.
• Sanchez-Espinoza vs. Reagan (1983). Twelve House members joined with 12 Nicaraguan citizens and two American citizens seeking damages and a declaration that Reagan had violated war powers restrictions by pursuing the overthrow of the Nicaraguan government.
• Conyers vs. Reagan (1984). Eleven House members sued Reagan, arguing that his use of military force in Grenada had usurped Congress’s war powers.
• Lowry vs. Reagan (1987). Ten House members sued Reagan on war powers grounds, this time over the president’s approval of escort operations for reflagged Kuwaiti tankers in the Persian Gulf.
• Dellums vs. Bush (1990). One senator and 53 House members sued President George H.W. Bush to stop him from attacking Iraq without approval from Congress during the run-up to what became the Persian Gulf War.
• Raines vs. Byrd (1997). Six members of Congress who had voted against giving the president the authority to veto individual items in bills -- rather than just entire bills -- sued over the act’s constitutionality.
• Chenoweth vs. Clinton (1999). Four House members sued President Bill Clinton over his creation by executive order of the American Heritage Rivers Initiative, saying it exceeded his authority as president.
• Campbell vs. Clinton (2000). Thirty-one members of Congress sued Clinton on war powers grounds for his decision to send military forces to participate in a NATO-organized campaign of airstrikes in the former Yugoslavia.
• Kucinich vs. Bush (2002). Rep. Dennis Kucinich, D-Ohio, sued President George W. Bush over the administration’s unilateral withdrawal from an anti-ballistic missile treaty, arguing that the executive branch could not do that without Congress’ consent.
• Doe vs. Bush (2003). Twelve House members joined with several dozen servicemembers and their families to sue Bush on war-powers grounds, seeking to stop a United States-led invasion of Iraq.
• Kucinich vs. Obama (2011). Kucinich also sued Bush’s successor, Obama, on war-powers grounds, saying that his intervention in Libya was unconstitutional.
Drew Hammill, a spokesman Pelosi, said her statement is "accurate" because "she is clearly referring to the ‘House of Representatives,’ not individual members of Congress."
Kermit Roosevelt, a law professor at the University of Pennsylvania, agreed that Pelosi has some justification for singling out a lawsuit by the whole House. Having a majority of the House on board "suggests the grievance may be more legitimate," Roosevelt said, though he added that this scenario also "suggests that the House should be able to use the powers the Constitution gives it -- our familiar system of checks and balances -- rather than trying to enlist the judiciary in a political struggle."
Still, while Pelosi’s claim is literally accurate, legal observers suggested that her careful wording selectively downplays a long history of clashes between the two branches of government.
Elizabeth Slattery, a legal fellow with the conservative Heritage Foundation, agreed, saying that Pelosi’s statement is "technically accurate," but "misleading" "Typically, suits are brought against other executive branch officials, rather than the president directly," she said.
Stan Brand, a veteran Washington attorney who served as general counsel to the U.S. House under the late Speaker Thomas P. "Tip" O'Neill, D-Mass., said, "It may be that the House as an institution has never sued a president, but undoubtedly there have been cases where challenges to presidential actions have occurred. I am not impressed by the claim that this is the first such suit, because it elevates form over substance. The much more interesting issues for me are the jurisprudential separation-of-powers implications of such litigation."
Pelosi said "the House of Representatives has never sued a sitting president in all of U.S. history." We did find a long record of skirmishing between the legislative and executive branches over the limits of each branch’s power, including at least 14 suits over the past four decades filed by individual lawmakers or groups of lawmakers. But Pelosi said "the House of Representatives," and in her narrowly crafted claim, she’s right. We rate her statement True.
NBC News, "Impeachment Talk Becomes a Cynical Game," July 30, 2014
Reuters, "U.S. House panel votes to authorize lawsuit against Obama," July 24, 2014
Roll call vote on H. Res. 676, July 30, 2014
Congressional Research Service, "War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution," Feb. 17, 2012
R. Lawrence Dessem, "Congressional Standing to Sue: Whose Vote Is This Anyway?" 1986
Heritage Foundation, "Boehner v. Obama: Can the House of Representatives Force the President to Comply with the Law?" July 24, 2014
Washington Post, "Republicans v. Obama – and other times the president has been sued," July 11, 2014
National Journal, "The Boehner Lawsuit Against Obama Is Beginning to Take Shape," July 8, 2014
Slate, "Can You Sue the President? Rep. Kucinich just did," June 16, 2011
Volokh Conspiracy blog, "War Powers Suit Dismissed," Oct. 23, 2011
Point of Order blog, "How is Kucinich v. Obama Different than Campbell v. Clinton?" June 15, 2011
Court Listener, "Senate Select Committee on Presidential Campaign Activities vs. Nixon," accessed July 31, 2014
OpenJurist, "Drummond v. Bunker," accessed July 31, 2014
Oyez, "Goldwater vs. Carter," accessed July 31, 2014
Justia, "Goldwater vs. Carter," accessed July 31, 2014
Oyez, "Raines vs. Byrd," accessed July 31, 2014
FindLaw, "Chenoweth vs. Clinton," accessed July 31, 2014
FindLaw, "Campbell vs. Clinton," accessed July 31, 2014
Google Scholar, "Kucinich vs. Bush," accessed July 31, 2014
Google Scholar, "Doe vs. Bush," accessed July 31, 2014
Huffington Post, "Federal Judge Shoots Down Congress' Challenge To Obama's Actions In Gaddafi's Libya," Oct. 20, 2011
Email interview with Kermit Roosevelt, University of Pennsylvania law professor, July 30, 2014
Email interview with Elizabeth Slattery, legal fellow with the Heritage Foundation, July 30, 2014
Email interview with Stan Brand, Washington attorney and former general counsel to the U.S. House, July 31, 2014
Email interview with Donald Wolfensberger, Woodrow Wilson International Center for Scholars, July 30, 2014
Email interview with Drew Hammill, spokesman for Nancy Pelosi, July 30, 2014
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