With the November midterm elections around the corner, House Speaker John Boehner, R-Ohio, has opted to sue President Barack Obama.
Charging that Obama is failing to fulfill his constitutional obligation to faithfully execute the nation’s laws, Boehner has promised a House vote on a resolution to take the president to court over his administration’s delay of the employer mandate in the Affordable Care Act. In July 2013, the administration pushed back the mandate by a year, then in January the administration gave businesses with between 50 and 99 employees yet another year to comply.
Critics on both left and the right have dubbed the impending suit a political stunt, and voters appear to think so too: A poll Monday showed a slim majority of Americans believe the lawsuit is illegitimate. The legal community largely believes the case will be laughed out of court.
But what if Boehner and his allies are serious about winning? And what if they do? The result would be a radical change in the power structure of the three branches of government, with the courts for the first time stepping in to solve political disputes between the president and Congress.
The lawsuit may be a stunt, but one of Washington’s top conservative lawyers is helping to mastermind the legal strategy behind it. David Rivkin, who was part of the legal team challenging Obamacare’s individual mandate, has teamed up with Florida International University law professor Elizabeth Price Foley to figure out how to overcome the most significant legal hurdle for Boehner’s lawsuit: how to convince the courts on the tricky legal issue of “standing.” Or, put simply, whether the House of Representatives has the right to sue Obama in the first place.
“I think the folks that are behind the legal side of it are serious,” said Jonathan Adler, a professor at Case Western Reserve University Law School who pioneered a legal challenge to the Affordable Care Act that is making its way through the courts. “If I had to handicap it, I don’t think it’s going to work, but I don’t think it’s a frivolous argument.”
Adler sees the fact that Boehner chose to cite only the employer mandate delay in the suit, and left out numerous other issues where Republicans have claimed executive overreach by Obama, as a sign of the lawsuit’s seriousness. While a suit that names a number of different grievances might go over better politically, concentrating on the mandate delays fits best with Rivkin and Foley’s legal strategy.
“I would not call it a joke,” said Tara Grove, an expert on the separation of powers at the College of William and Mary law school. “I think it’s significant that the House of Representatives is actually thinking of bringing this matter to court.”
But first they’ll need standing. Standing doctrine requires that someone must be seeking redress for a specific injury. Conversely, an abstract grievance, such as “the administration isn’t executing the laws as I believe it should,” is not enough grounds to sue.
“I think the arguments in favor of standing are thin to the point of vanishing,” said Nicholas Bagley, a professor at the University of Michigan Law School who has raised concerns about the legality of the mandate delays but still believes the standing issue will keep it out of court.
Rivkin and Foley argue that if Boehner is serious, the House can take a few specific steps to increase their odds of convincing a sympathetic court to grant them standing. Specifically, bring the lawsuit on behalf of the full House rather than a handful of members, sue over an action that no private party will have standing to sue for (like the employer mandate delay), prove that there is no legislative remedy, and, finally, frame the issue as the executive branch nullifying the power of Congress.
None of these arguments would unlock the legal barriers to standing, but they could persuade a court, and ultimately the Supreme Court, that the House’s suit merits an exception from current standing doctrine.
The problem is, How do you allow an exception for this suit without opening the door to a new role for the judiciary to adjudicate political disputes?
Grove has argued that the Constitution does not give Congress the power to defend laws in federal court. It can, however, investigate the executive branch, issue subpoenas and have them enforced by the courts, and, in egregious circumstances, Congress can impeach a president. But the Founding Fathers, she believes, did not want the courts deciding disputes that should be worked out in the political arena. That’s what she fears would become the norm if courts grant standing in Boehner’s lawsuit.
If Boehner succeeds in getting his day in court, Grove said, “virtually any dispute between Congress and the president could wind up in court.”
“I think that’s a legitimate fear. We don’t want to replace the political process with litigation,” Adler said. "Can that line be drawn crisply enough here that a court will feel comfortable with it? I don’t know.”
This is just one of the reasons the legal community doesn’t believe the House will win the standing argument. Perhaps the most influential person in modern standing doctrine, which has limited access to the courts, is conservative Supreme Court Justice Antonin Scalia.
Take, for example, the famous case last year over the constitutionality of the Defense of Marriage Act (DOMA). In that case, the House’s Bipartisan Legal Advisory Group (BLAG) intervened to defend DOMA when the Obama administration would not. The court agreed to hear the case but never decided whether BLAG had standing to defend the law. However, Justice Samuel Alito wrote in his dissent that BLAG should have standing. In a separate dissent, Scalia rebuked Alito and said the case should have been dismissed for its lack of standing.
“Heretofore in our national history, the President’s failure to ‘take Care that the Laws be faithfully executed’ could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure,” Scalia wrote. But under Alito’s proposed standing doctrine, the current system “would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress’s liking.”
According to Scalia, “The opportunities for dragging the courts into disputes hitherto left for political resolution are endless.”
Scalia’s decision to take on his fellow dissenter in the DOMA case has proved prescient, since, even though the Supreme Court never gave BLAG standing, the case has been cited by Rivkin and Foley as an argument for why they should have standing to sue the president in this instance—opening exactly the can of worms that Scalia predicted.
Scalia is no fan of Obama, but Grove predicts he “would be one of the first to dismiss this lawsuit.” Moreover, she said, she wouldn’t be surprised to see the House’s opponents citing Scalia to get the Boehner suit dismissed.
Does Boehner want to go down the road that Scalia fears, of the courts stepping in to decide political disputes?
Perhaps it’s coincidence, but Boehner’s decision to pursue a lawsuit that, if successful, would significantly rein in the power of the executive branch comes at the same time he decided not to pursue immigration reform this year. Many believe the decision will cost Republicans so many Latino votes that it will be impossible to win the White House in the short to medium term, at the least.
“[P]rogressives would do well to assume there is a method to Boehner’s madness,” Democratic strategist Paul Begala recently wrote recently at CNN. “Unable to marshal the votes to get their legislative agenda through the Senate and unable to earn the votes to recapture the White House, it may be that the Republicans’ strategy for the foreseeable future is to ignore their losses at the ballot box and leave the heavy lifting to the one place where five Republican votes can cancel out tens of millions of Americans’ votes: the Supreme Court.”