U.S. Politics/Advise & Consent

Advertisement


Question
Hi Marc, I have a question regarding the fight to fill the current vacancy on the Supreme Court. If an elected official refuses to do a task required under the constitution, can he be removed/impeached? For example... if the President nominates a candidate (which he says he will) for the Senate Judiciary Comittee to consider, and they refuse to do so (which some have said they may do) - is there a mechanism for the president, or anyone, to remove an offical for refusing to undertake a constitutional requirement. Can the Office of the President (through the White House Cousel, Attorney General, Solicitor General, or Justice Department) sue the Office of the Senate Leader or the Leader himself for not fulfilling that constitutional duties of considering a President's nominee. Has a President ever sued Congress, or a member of Congress, or could he? And it two lower courts differed on their verdicts could the Supreme Court ever take that case?

Thank you in advance...

Answer
Hi James,

I'll be glad to help with your questions.

1) The US president and justices of the Supreme Court (and lower federal courts) are subject to impeachment and, if convicted, are removed from office. Members of Congress, however, are not subject to impeachment. Instead, members are subject to expulsion only by their peers, according to whatever rules are agreed by the members.

2) Indeed, there is no legal mechanism to compel a branch of Congress to perform its duties. So, if the president nominates a candidate for the Supreme Court, he has no legal recourse if the Senate refuses to consider the nomination - to withhold the consent required by the Constitution. Now, we can expect that President Obama and Democrats in Congress will exert pressure, but legal force is not an option.

3) The president cannot sue Congress as an entity. It's possible that an individual member of Congress could be sued by the president. More specifically, anyone - the president included - can file a lawsuit, but any lawsuit is subject to immediate dismissal by a court. Regarding your question, it's possible that the president could file a lawsuit against a particular member of Congress and be granted "standing" which would allow the lawsuit to proceed. However, it's hard to imagine the circumstances of that, and it has not happened so far. One reason it hasn't happened is that the president and members of Congress are granted broad immunity from civil litigation in the performance of their official duties. Note that such does not apply to criminal cases.

4) With that broad immunity in mind, it is nevertheless true that particular members of Congress can file a lawsuits against the president and (more important) be granted standing. Specifically, Representative Dennis Kucinich of Ohio sued President Obama in 2011 for violating the 1973 War Powers Act (which pertains to the deployment of US troops overseas without Congressional approval). But, the lawsuit was dismissed because Kucinich was not granted standing. However, in 2014 Republicans filed a lawsuit against Obama to challenge his executive actions regarding immigration, and the Republicans were granted standing. My understanding is that this is the first lawsuit by members of Congress against the president to be granted standing. This litigation is one which will likely be affected by the absence of a 9th Supreme Court justice.

5) The Supreme Court most often functions as an appellate court, and the justices typically take cases because at least two lower courts have conflicting decisions.  

I hope that this is helpful, James!

- Marc  

U.S. Politics

All Answers


Answers by Expert:


Ask Experts

Volunteer


Marc Aperio

Expertise

I'll be glad to answer any question related to US politics, regarding domestic or international issues.

Experience

I've studied US history and politics for nearly 20 years. I'm currently also volunteering in the American, European, and Medieval history categories.

Publications
My newest book is called (REAL QUICK) HISTORY (https://www.amazon.com/dp/B01MYOKUZT) I've also written: WE NEED TO TALK: 27 DIALOGUES ON RACE IN AMERICA is available in the Amazon Kindle store. http://www.amazon.com/dp/B01E69CUUI AMERICAN REVOLUTION 2016: RATIONALE AND AIMS FOR RADICAL CHANGE http://www.amazon.com/American-Revolution-2016-Rationale-Radical-ebook/dp/B00MI9H9VE

Education/Credentials
BA History (High Honors)

©2016 About.com. All rights reserved.