The next huge separation of powers battle is about to spill into the federal courts. Roll Call reports that Speaker of the House John Boehner is planning a lawsuit against the Obama Administration based on its non-enforcement, and rewriting of the law. While the report is somewhat vague on details, it seems Boehner will convene the BLAG, and file suit based on David Rivkin and Elizabeth Price Foley’s theory of standing.
Boehner’s legal theory is based on work by Washington, D.C., attorney David Rivkin of Baker Hostetler LLP and Elizabeth Price Foley, a professor of law at Florida International University College of Law.
Rivkin said in an interview that in addition to proving institutional injury, the House would have to prove that as an institution, it has authorized the lawsuit. A vote by the Bipartisan Legal Advisory Group would do so.
The suit would also have to prove that no other private plaintiff has standing to challenge the particular suspension of executive action and that there are no other opportunities for meaningful political remedies by Congress, for instance by repeal of the underlying law.
“Professor Foley and I feel that if those four conditions are met, the lawsuit would have an excellent chance to succeed. This is particularly the case because President Obama’s numerous suspensions of the law are inflicting damage on the horizontal separations of powers and undermine individual liberty,” Rivkin said.
Rivkin and Foley have argued in op-eds that most of Obama’s executive orders have been benevolent — that is, they have exempted classes of citizens from the law, for instance through deferred action for childhood arrivals. Therefore, no individual has standing to sue because the actions have helped people. Congress as an institution, however, can sue because the actions flout the laws it has have passed.
I should note that David Rivkin was two decades ahead of the curve in arguing that the individual mandate was unconstitutional, and was one of the earliest opponents to articulate a theory of why the ACA was unconstitutional.