Updates on the Boehner Law Suit

July 30th, 2014

As I noted earlier, the House voted to authorize a suit against the Obama Administration for violations of the separation of powers.

In the WSJ, David Rivkin and Elizabeth Price Foley, whom the Journal dubbed the “architects” of this suit, state “The Case for Suing the President.” This editorial focuses on the merits, rather than on standing. Essentially, they argue that if a law doesn’t work, it is for Congress to fix it, not the President. Otherwise, the status quo remains:

Congress has the exclusive authority to make law because lawmaking requires pluralism, debate and compromise, the essence of representative government. If Congress cannot achieve consensus, that doesn’t mean Congress is “broken.” A divided Congress reflects a divided people. Until there is a compromise acceptable to the majority, the status quo is the only correct path. An impasse emphatically does not warrant a president’s bypassing Congress with a pen and phone, as Mr. Obama claimed the power to do early this year.

The separation of powers also guarantees political accountability. When Congress makes a law and the president executes it as written, citizens will know whom to reward or punish at the next election.

A president who unilaterally rewrites a bad or unworkable law, however, prevents the American people from knowing whether Congress should be praised or condemned for passing it. Such unconstitutional actions can be used to avert electoral pain for the president and his allies.

If Mr. Obama can get away with this, his successors will be tempted to follow suit. A Republican president, for example, might unilaterally get the Internal Revenue Service to waive collection of the capital-gains tax. Congress will be bypassed, rendering it increasingly irrelevant, and disfranchising the American people.

I make similar points concerning the suspension of the law in Congressional Intransigence and Executive Power.

Todd Gaziano, who recently joined Pacific Legal Foundation to head their Washington D.C. Center, has a piece in National Review dispelling ten myths about the House’s suit (alas no cat gifs). His first two points speak to the standing issue:

Myth 1: The political branches can never sue each other. The federal courts have enforced various subpoenas by a house of Congress against the executive branch, especially when it is clear that the suit is authorized by the entire branch. The famous ruling against President Nixon for the production of his Oval Office tapes was initiated by a grand jury, but the court stated that Congress might also compel a president to produce records in certain circumstances, even if the president has invoked executive privilege. The courts should not get involved in the substance of a policy dispute, but “saying what the law is” sometimes includes enforcing the separation of powers by drawing lines between the branches and declaring that, yes, the president does have the authority to do X or he does not. The interesting question is what kinds of cases the courts will and will not hear, not whether they will hear any at all.

Myth 2:The Supreme Court held in Raines v. Byrd (1997) that Congress can’t challenge the execution of a law. Although the Court held that several members of Congress did not have standing to contest the constitutionality of the line-item-veto law at issue, the Court explained that three factors influenced its decision in that case, none of which would apply to the contemplated House suit: The suit by a handful of members (“sore losers”) was disfavored; the challenged provision had not yet been exercised, which made the suit hypothetical; and there likely would be private citizens who could (and did) bring a similar challenge when the veto was invoked. It would have been so much simpler for the Court to write that a legislature can never sue to enforce its powers if that were so, but the Court has never said that. Indeed, the High Court held in Coleman v. Miller (1939) that a majority of state senators may challenge an action by the state’s lieutenant governor, who they alleged invalidated their votes, in federal court.

Rounding up the coverage, the WSJ has a house editorial, titled “So sue him.” The piece distinguishes the Boehner suit from the recently-dismissed challenge by Senator Ron Johnson (which I blogged about here and here)–the former is authorized by the entire House.

The courts have generally held that Members of Congress as individuals lack the “standing,” or concrete injuries, to sue. As recently as this month a federal district court in Wisconsin rejected a case brought by Senator Ron Johnson over an ObamaCare provision. Standing doctrine that limits the judiciary to “cases and controversies” is one of the few meaningful restraints on its power.

Yet even as he tossed Senator Johnson’s suit for that reason, Judge William Griesbach wrote in his careful opinion that the executive branch had rewritten the ObamaCare provision “so as to render it essentially meaningless,” which, if proven, “would be a violation of Article I.” He cited Madison’s admonition in Federalist No. 47 that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”

The difference between Mr. Johnson’s suit and Mr. Boehner’s is that the House is making an institutional challenge to executive abuse. The courts may take such a challenge seriously, in particular because the suit claims that Mr. Obama’s abuses are usurping the institutional power of Congress under the Constitution. The obligation of elected officials on both ends of Pennsylvania Avenue is to leave their offices no weaker than they found them, and Mr. Boehner realizes that Congress’s core power to write the law is being hijacked by Mr. Obama.

The Supreme Court has already responded when this President’s law-breaking have been challenged by private parties. This past term the Supreme Court rebuked the White House for its unilateral overreach in appointment powers (Noel Canning), unlawfully rewriting the Clean Air Act (Utility Air Regulatory Group) and infringing on religious freedom (Hobby Lobby).

Stay tuned.