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Paul Ryan’s Emergency Trump Plan Is Doomed

CREDIT: AP PHOTO/J. SCOTT APPLEWHITE
CREDIT: AP PHOTO/J. SCOTT APPLEWHITE

Afraid of Donald Trump’s racist policies? Worried that he may deport you? Or that he could ban you from the country altogether? Don’t worry, Speaker Paul Ryan (R) says, if a President Trump oversteps his lawful authority, Ryan will sue him!

Ryan’s pledge to sue Trump — “I would sue any president that exceeds his or her powers” — came in the course of an interview with the Huffington Post’s Matt Fuller. In it, Ryan, who once described Trump’s attack on a Latino judge as “sort of like the textbook definition of a racist comment,” appears quite aware of the awkward partnership he pulled himself into when he endorsed the GOP presidential nominee. Yet Ryan also holds firm to what appears to be his core moral value: “I want Republicans to win this election. I don’t want another Democrat in the White House.”

As a consolation prize for voters who may think that Ryan has not struck the appropriate moral balance, however, he does offer his pledge to sue a hypothetical President Trump if Trump “exceeds his or her powers.”

Though Ryan is coy about which specific Trump proposals the speaker thinks are beyond the president’s authority, let’s assume that Ryan actually does decide to bring a broad range of lawsuits against a runaway President Trump. Would it work? The answer is almost certainly no. Existing law gives the Speaker of the House, or even the House of Representatives as a whole, very little authority to haul the executive branch into court. And even a recent attempt to revise this law by an especially conservative judge would only tweak existing law around the margins.

Would it work? The answer is almost certainly no.

As a general rule, federal courts are not allowed to hear lawsuits unless the plaintiff in that suit has suffered a real legal injury at the hands of the defendant — a requirement known as “standing.” This standing requirement, moreover, requires the plaintiff to do more than state an injury that they share in common with nearly everyone else. Rather, the Supreme Court’s precedents require plaintiffs to state an injury that is particular to them before they are allowed to proceed in federal court.

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The Court is skeptical of lawsuits brought by lawmakers who claim that Congress’ rightful authority is being sucked away by the other branches of government. Thus, for example, when a group of lawmakers sued to challenge the Line Item Veto Act in Raines v. Byrd, the Court held that they had no standing to be in federal court in the first place. These plaintiffs, the justices explained, “have alleged no injury to themselves as individuals” as “the institutional injury they allege is wholly abstract and widely dispersed[,] and their attempt to litigate this dispute at this time and in this form is contrary to historical experience.”

Indeed, Speaker Ryan is probably familiar with these general legal principles because he is in the middle of an important case that seeks to upend them. In United States House of Representatives v. Burwell, the Republican-controlled House sued the Obama administration over a disagreement regarding whether money that the administration is paying out under Obamacare was validly appropriated by Congress. In a stroke of good luck for Ryan and his fellow Republican lawmakers, the case was assigned to Judge Rosemary Collyer, a conservative George W. Bush appointee.

Though Collyer acknowledged in House that “courts have guarded against ‘the specter of ‘general legislative standing’ based upon claims that the Executive Branch is misinterpreting a statute or the Constitution,’” she also invented an exception to the general rule against legislative standing in a widely criticized opinion. In effect, Collyer claims that the rule against these sorts of lawsuits does not exist when lawmakers allege that the executive is unlawfully spending money.

Scholars across the political spectrum predict that this decision will be reversed on appeal. But even if Collyer’s new exception to the rule against legislative standing is embraced by higher courts, it would only increase Ryan’s ability to sue a hypothetical President Trump around the margins. There are plenty of federal agencies — U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, the FBI — that have lawfully been funded by Congress. And the President of the United States can lead a campaign of harassment and intimidation using these agencies without having to seek additional money from Ryan’s branch of government.

Of course, that does not change the fact that individual people who aren’t members of Congress are likely to have standing to challenge many of Trump’s actions in Court. If Trump were to ban Muslims from entering the country, for example, an American citizen who wishes to travel abroad but fears that they will be unable to return home because of their Islamic faith would likely have standing to sue.

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But the fact that an individual has standing to sue doesn’t mean that they will win their lawsuit, and Ryan’s counterpart in the Senate is doing virtually everything within his power to maximalize Trump’s impact on the judiciary. Like Ryan, Senate Majority Leader Mitch McConnell (R-KY) backs Trump’s bid for the presidency because, in McConnell’s words, “the party of Lincoln wants to win the White House.” McConnell emphasized that he thinks that Trump should be the next President of the United States because “he’s going to appoint the right kind of person to the Supreme Court.”

Should Trump be elected, the openly racist candidate will have an opportunity to nominate someone to the high Court immediately after taking office — largely thanks to Mitch McConnell. Almost immediately after the death of Justice Antonin Scalia created a vacancy on the Court, McConnell announced his intention to block anyone named by President Obama.

If people like Ryan and McConnell genuinely have qualms about the consequences of placing a racist in the White House, there are steps they can take right now to mitigate those consequences. As Josh Barro notes, for example, Congress could pass laws right now to limit Trump’s authority while he is in office.

Meanwhile, Senate Republicans could help ensure that these — and other — laws will actually be enforced against a lawless President Trump by confirming Merrick Garland, Obama’s nominee to the Supreme Court. That way, Trump will not be able to appoint a justice to the current vacancy that will be a rubber stamp for his policies.

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Republican lawmakers, however, have shown no interest in taking the kinds of actions that could potentially reduce the impact of a President Trump. Many of them, like Ryan and McConnell, appear to be too busy explaining why voters should elect Trump in spite of his overt racism.