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Merit and Standing, or the Lack Thereof
Author: Scoopster    Date: 08/01/2014 11:07:46

Now that the GOP-controlled House has voted to waste even more taxpayer money on their silly legal manuever, perhaps it's a good time to look at how civil lawsuits work in our wonderful country.

A great place to start, whether you're a practiced juris doctor or just a layman like myself, is the Federal Rules of Civil Procedure. These fairly basic (yeah I'm being generous here) rules establish the steps to take when filing a civil lawsuit, the various procedures and hearings, motions, defenses and objections. They also set the boundaries and requirements that determine if a lawsuit has merit or is frivolous, whether a plaintiff has standing to file the suit, and which court(s) have standing to hear arguments in the suit.

Follow me.... into the esquire hole!

NOTE: The legal conclusions highlighted below are my own, and are not necessarily accurate since I'm not a lawyer. If by chance a lawyer does read this and finds something that needs correction, clarification or can add additional information to the discussion we welcome you to join in the comments.

The part of these rules of immediate interest to us at this point is Title III, Rule 12, Sections (b) and ©. (Emphasis added below)
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

© Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

Lack of Subject-Matter Jurisdiction: This means that the plaintiff must show that they have a valid legal basis for their lawsuit.

In this case, the basis for the lawsuit is that the President is not faithfully executing laws, and therefore is in violation of Article II, Section 3 of the Constitution. However, the Constitution doesn't firmly define this other than to say that the President "...shall take care that the laws be faithfully executed,..." which means the extent of this power can be defined by acts of Congress. And we've seen many, many cases of such limits and definitions on Presidential Power passed through Congress and enacted into law, with or without the President's signature when necessary. One of the most well-known cases of this is the War Powers Resolution of 1973 which limited the President's executive power as Commander-in-Chief of the Armed Forces.

The faithful execution clause has also been defined over the years to mean that the President doesn't directly oversee execution of laws, but that he oversees and delegates the power to the rest of the Executive Branch divisions. The Cabinet Secretaries, who manage the various divisions, report back to the President on their progress and obstacles in executing laws. And there will be obstacles - cost adjustments which require changes to budgets, conflicts with other existing laws that need to be resolved, and of course public perception are just a few examples of problems that may arise in the execution of new laws.

Such is the case with the Affordable Care Act, with its well-publicized web portal technical issues, conflicts with states that refuse to cooperate, and tax implications from the employer and individual mandates. Based on the information available after the past few years of implementing changes and preparing for the full launch of the ACA, it was determined by the President's advisers that more time was needed. And he took it on himself to inform the public.

That wasn't good enough for Speaker Boehner. After years of attacking the President and leading his majority caucus in the House to vote over 50 times to outright repeal the ACA, most of those without a replacement plan or even keeping new regulations that had already gone into effect, he pulled a complete turnaround and decide that the President needed to get the new law fully implemented on its original timetable! That's led him to this point, and this is the subject matter of his lawsuit. That's a really flimsy argument to make because there's no act of Congress that forces the President to fully enforce a law as it is written, and I'm pretty sure the matter hasn't been litigated previously. Unless Boehner's legal team has a REALLY convincing argument, I don't see a federal judge letting the suit go forward.

Failure to State a Claim Upon Which Relief Can Be Granted: This means that the plaintiff needs to show harm by the actions of the defendant.

As I mentioned above, the basis for the lawsuit is that the President isn't implementing the ACA on schedule or to the letter of the law. However, as I also mentioned the House has voted over 50 times to repeal the ACA. These two paths of action are at direct opposition to each other - they want to repeal the law completely, but at the same time they want it fully enacted! That's a clear contradiction of intent that goes against the action (or inaction) that is claimed in the lawsuit to have caused harm, and if a layman such as myself can see that then you can guess what a federal judge with an experienced legal mind is going to do.


That said, a judge could just plain throw out the suit on improper venue. There is, after all, a Constitutionally defined path for Congress to air its grievances against a President that they see as not acting in a manner consistent with his oath of office and the Constitution. And despite Boehner's assertions that they don't want to, they're pretty damn vocal about doing it:

Rep. Darrell Issa (R-CA) - May 2010
Fox News Contributor Dick Morris - October 2010
Rep. James Sensenbrenner (R-WI) - July 2011 and December 2011
Sen. Tim Scott (R-SC) - July 2011
Rep. Steve King (R-IA) - July 2011
Rep. Michael Burgess (R-TX) - August 2011
Sen. Jon Kyl (R-AZ) - June 2012
Rep. Mo Brooks (R-AL) - January 2013
Rep. Steve Stockman (R-CO) - January 2013
Former Rep. Trey Radel (R-FL) - January 2013
Rep. Louis Gohmert (R-TX) - January 2013
Former Atty. General Edwin Meese - January 2013
Wash. Times columnist Jeffrey Kuhner - April 2013
Sen. James Inhofe (R-OK) - May 2013
Rep. Jason Chaffetz (R-UT) - May 2013
Sen. Tom Coburn (R-OK) - August 2013
Rep. Blake Farenthold (R-TX) - August 2013
Rep. Kerry Bentivolio (R-MI) - August 2013
South Dakota Republican Party Convention - June 2014
Former Rep. Allen West (R-FL) - June 2014
Former Gov. Sarah Palin (R-AK) - July 2014
Rep. Steve Scalise (R-LA) - July 2014
..... I could list more but we'd be here all day.

32 comments (Latest Comment: 08/01/2014 21:53:41 by Mondobubba)
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