# Unenforceable Laws **URL:** \ **Category:** Great Debates\ **Created:** [June 3, 2014, 2:41pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928 "2014-06-03T14:41:11Z")\ **Posts on this page:** 19\ **Page:** 1
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [June 3, 2014, 2:41pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/1 "2014-06-03T14:41:11Z")
There’s been a lot of discussion about the legality of President Obama’s actions WRT the prisoner swap. Without getting into whether in fact his actions in this particular case were legal or illegal (or constitutional or not, as per preference), I was wondering about the point of this type of law altogether, which seem to be completely unenforceable. Using this law as an example, I see 2 problems. [ol] [li]Who has standing to challenge the president’s actions in matters of this sort? Does Congress? People who claim they might be harmed by released prisoners? I’m not a legal scholar, but I can see where that could be an issue.[/li][li]The cat’s out of the bag. This can’t be undone. And there are obviously no criminal penalties on the president for doing presidential actions that are technically illegal. So who cares? As a practical matter, there will always be enough fog from talking head legal pundits so that everyone can decide whether they believe it’s legal or not based on whether they approve of it on policy or other grounds, and whether in fact it’s actually legal or not is completely moot.[/li][/ol] Is the above correct? And if so, what’s the point of such laws? ISTM that the only laws worth bothering with are those which can be enforced in court, whether before the fact via court orders and injunctions or after the fact via penalties for violators. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 3, 2014, 3:36pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/2 "2014-06-03T15:36:41Z")
Yes, Congress can challenge executive action via the courts (generally.) You seem to be suggesting that there is no point passing a law restricting executive authority because the POTUS can ignore it. Well, no. If Congress thinks they had the authority to require the POTUS to notify them of prisoner exchanges (the Administration, for its part, has always said that clause was unconstitutional) they can take him to court, and impeach if necessary. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [June 3, 2014, 3:42pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/3 "2014-06-03T15:42:23Z")
Does Congress always have standing to take the POTUS to court? I’m not sure about that. But in any event, in cases like this what’s done is done. A court can’t undo it. And there are no penalties on the Prez for ignoring the law, even if a court was to rule that this is what he did. I don’t see that impeachment has anything to do with this. Congress can impeach for whatever they want. As a practical matter no president is going to be impeached over a technical question of whether something was against the law or not. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 3, 2014, 3:57pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/4 "2014-06-03T15:57:58Z")
Congress generally has standing to take the POTUS to court (hence the parenthetical.) You may be thinking otherwise because _individual members of Congress_ generally do not have standing. Or you might be thinking of the political question doctrine, which basically applies where the courts don’t think it will do any good for them to get involved. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [June 3, 2014, 4:26pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/5 "2014-06-03T16:26:42Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Congress generally has standing to take the POTUS to court (hence the parenthetical.) Do you have a source for this? I’ve looked around a bit and find a lot of discussion about whether congresspeople have standing but have been unable to find the distinction you’re making. Thanks. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 3, 2014, 4:43pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/6 "2014-06-03T16:43:57Z")
It’s sort of implied from the end of [Raines v Byrd](http://supreme.justia.com/cases/federal/us/521/811/), where the court assumes that Byrd would have had standing if he was authorize to sue on behalf of one of the houses. As far as I can tell Congress has never actually tried to sue as a body. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [June 6, 2014, 5:07pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/7 "2014-06-06T17:07:55Z")
“Sort of implied” doesn’t sound the same as settled law to me. But regardless, if the only enforcement mechanism is something that has never been used in history then I still think that law is pretty close to moot if not actually that. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 6, 2014, 5:09pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/8 "2014-06-06T17:09:57Z")
Well, it’s certainly true that these cases are generally deferred under the political question doctrine. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [June 25, 2014, 8:50pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/9 "2014-06-25T20:50:31Z")
> [@Really\_Not\_All\_That\_Bright](#): > > As far as I can tell Congress has never actually tried to sue as a body. [I guess there’s always a first time.](http://www.politico.com/story/2014/06/john-boehner-lawsuit-president-obama-108298.html) > [@](#): > > House Speaker John Boehner said he plans to move forward with a lawsuit against President Barack Obama for misusing executive powers. > > “The Constitution makes it clear that a president’s job is to faithfully execute the laws. In my view, the president has not faithfully executed the laws,” the Ohio Republican said on Wednesday. “When there are conflicts like this between the legislative branch and the administrative branch, it’s … our responsibility to stand up for this institution.” ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 25, 2014, 10:44pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/10 "2014-06-25T22:44:12Z")
Well, it will keep the TP happy. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 26, 2014, 7:12pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/11 "2014-06-26T19:12:30Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Congress generally has standing to take the POTUS to court (hence the parenthetical.) You may be thinking otherwise because _individual members of Congress_ generally do not have standing. Or you might be thinking of the political question doctrine, which basically applies where the courts don’t think it will do any good for them to get involved. When does Congress as a whole sue the president? It is always some faction or subset of Congress that brings the lawsuit. Also, I came across this: > [@](#): > > Congress probably can’t sue the president, either. The Supreme Court has severely restricted so-called “congressional standing,” creating a presumption against allowing members of Congress to sue the president merely because he fails to faithfully execute its laws. > > SOURCE: [Why not even Congress can sue the administration over unconstitutional executive actions | The Daily Caller](http://dailycaller.com/2014/02/07/why-not-even-congress-can-sue-the-administration-over-unconstitutional-executive-actions/#ixzz35m3PBFN7) ---
**Author:** ![Rick](https://avatars.discourse-cdn.com/v4/letter/r/9f8e36/32.png) [@Rick](https://boards.straightdope.com/u/Rick)\ **Post date:** [June 26, 2014, 7:36pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/12 "2014-06-26T19:36:30Z")
It will make for the best Judge Judy episode ever. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [June 26, 2014, 7:37pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/13 "2014-06-26T19:37:36Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, it will keep the TP happy. And me. It’s my understanding that besides for a great expansion of executive power in granting waivers for, or just deciding not to enforce, any laws he doesn’t like, Obama has also used this as leverage to effectively create new laws, by making his waivers conditional on complying with conditions that he lays down. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 26, 2014, 8:07pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/14 "2014-06-26T20:07:10Z")
> [@Rick](#): > > It will make for the best Judge Judy episode ever. I was thinking _Cops_. Regards, Shodan ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [August 7, 2014, 2:17pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/15 "2014-08-07T14:17:35Z")
On a related note, I have a question about the practical impact of the current Boehner/Republican lawsuit. Would this lawsuit, if successful, have any impact beyond the specific case the court rules on? I would think each alleged presidential over-reach would be a completely separate issue from a legal perspective, so there would be no carryover from one to the next. So as a practical matter, there’s no way to rein in a usurping president other that by congress suing again and again on each law. I don’t see that as practical, even if these lawsuits could be succesful to begin with. > [@Really\_Not\_All\_That\_Bright](#): > > Congress generally has standing to take the POTUS to court (hence the parenthetical.) You may be thinking otherwise because _individual members of Congress_ generally do not have standing. Correct me if I’m wrong, but you seem to be backing away from that position [here](http://boards.straightdope.com/sdmb/showpost.php?p=17600749&postcount=14). ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 7, 2014, 2:22pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/16 "2014-08-07T14:22:01Z")
No. [QUOTE=Me] Theoretically, a court might find congressional standing if a majority of both houses authorized the lawsuit; that hasn’t happened here. [/QUOTE] The Boehner suit is not Congress suing as a body. It is one house. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [August 7, 2014, 2:25pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/17 "2014-08-07T14:25:28Z")
You explained the basis of your assertion here in post #6, saying: “_It’s sort of implied from the end of Raines v Byrd, where the court assumes that Byrd would have had standing if he was authorize to sue on behalf of **one** of the houses._” (emphasis added). So you meant one house, not both. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 7, 2014, 3:02pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/18 "2014-08-07T15:02:35Z")
So I did. I misspoke, then. The _Raines_ court appears to have assumed that Congressional plaintiffs would need to be authorized to challenge on behalf of both houses: > [@](#): > > We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [August 7, 2014, 3:20pm UTC](https://boards.straightdope.com/t/unenforceable-laws/689928/19 "2014-08-07T15:20:48Z")
> [@Really\_Not\_All\_That\_Bright](#): > > So I did. I misspoke, then. I would note that the political context is a bit different than it was when you made your prior comment, and your inconsistent positions tended to support President Obama on both occasions. When I made this this thread, though I tried to steer away from Obama specifically, there was an unspoken implication that if Obama’s expansion of presidential powers was allowed to stand it would render increasingly large portions of the law pointless. Pointing out that this expansion could be challenged in court had the effect of countering that. Now that the Republicans have actually challenged Obama with an actual lawsuit, and Obama has declared it to be a frivolous political stunt, this naturally becomes the position of all Good and True Democrats. Yes, you can call me cynical. 🙂 > [@](#): > > The _Raines_ court appears to have assumed that Congressional plaintiffs would need to be authorized to challenge on behalf of both houses: This does not follow from the text you quoted. The lawsuit was filed by members of houses, so the court needed to say that both houses opposed the suit. (If anything, you could make the contrary inference, that one house opposing the suit would not have sufficed, since that would leave one house unapposed.)