Is Boehner's lawsuit against President Barack Obama a way to protect the Constitution's balance of power or an ill-conceived waste of tax dollars lacking any legal merit?
Those were the conflicting assessments offered up in Wednesday's House Rules Committee hearing on the proposed lawsuit by politicians and legal experts on opposite sides of the aisle.
The constitutional experts who testified before the panel split on whether the lawsuit, which Speaker John A. Boehner is expected to bring before the House for a vote next week, poses a real legal threat to the White House's increasing reliance on executive actions. Boehner and House Republicans, frustrated over what they see as a dangerous expansion of presidential power at the expense of Congress, want to sue Obama for making unilateral changes to the Affordable Care Act after the law was passed.
A key issue is whether the House has standing to sue the president. To establish standing, the House needs to establish injury.
Jonathan Turley, a law professor at The George Washington University who supports the lawsuit against the president, acknowledged that the lawsuit sails through the “choppiest” waters of standing, and he said House Republicans have the advantage on the case itself, but the president has the advantage on standing.
“But this field has been turned into a bloody mess by the Supreme Court,” Turley said.
Democrats on the Rules Committee, particularly Alcee L. Hastings of Florida, repeatedly pointed to the issue of standing to make the case that the lawsuit was unwarranted.
One of the witnesses, Florida International University law professor Elizabeth Price Foley, laid out four criteria, based on existing case law, for the lawsuit to demonstrate the principle of “institutional injury.” Institutional injury, as Foley noted, is a demanding legal requirement, and it is a crucial question in establishing standing for the lawsuit.
She said a successful lawsuit would have to show the nullification of a specific act of Congress, would need to be “carefully tailored,” and would have to focus on an executive action where the House could not remedy that action in a proportional manner.
But not all the witnesses agreed.
“I think that’s not the law,” said Walter Dellinger III, a lawyer at O'Melveny & Meyers LLP. And even if it were the law, Dellinger still saw problems with those principles.
“Even if there were an institutional injury, one house would not bring it,” Dellinger said, arguing that such a lawsuit would also have to be authorized by the Senate.
Dellinger, who noted that he was a “standing hawk,” said the House could not show injury from the president delaying the employer mandate. And just because, as Foley argued, the president’s delay was a "benevolent suspension,” that doesn't mean someone should have the right to sue.
“That, in my mind, is not a vice of the system; that is a virtue of the system,” Dellinger said.
Another obstacle to proving institutional injury — and therefore standing — could be that the House itself voted to delay the employer mandate. Dellinger argued the case was not over a disagreement in policy, but over an implementation in policy.
But Foley argued the issue wasn’t over the employer mandate itself; it was over the drastic reinterpretation of a law. And, Foley said, showing a distance from political considerations could actually be a benefit for House Republicans.
Foley also argued the House should have some means of recourse to deal with the office of the president overstepping its bounds other than impeachment and other than legislation, particularly when the president ignores or reinterprets the law.
“Peaceful, judicial resolution may be the most tailored and appropriate response,” Foley said.
But Simon Lazarus, the senior counsel of the Constitutional Accountability Center, argued the president’s actions were within his constitutional bounds. Specifically, Lazarus pointed to Article II Section III — where it states the president “take care that the laws be faithfully executed.” Lazarus argued, as many other legal scholars have before, that the phrase “take care” was a significant one intended to push the president to exercise “presidential judgment.”
“That is precisely what the president and the members of his administration are doing to implement the ACA,” Lazarus said.
But Turley and Foley argued these executive actions went beyond the scope of that test.
“I fail to see the ambiguity in this law,” said Turley, referring to the employer mandate in the 2010 Patient Protection and Affordable Care Act.
He said the rationale for Obama’s delays and executive actions have been along the lines of saying this is what people wanted.
“And that sounds a lot like a legislature,” Turley added.
Lawmakers themselves battled over the nature of the lawsuit. Democrats desperately tried to paint the lawsuit as a political stunt, dismissing it as “preposterous” and a “political exercise,” while Republicans, such as Rules Chairman Pete Sessions, argued, “This is not a political issue.”
Either way, the House will vote on the lawsuit this month, and unless the Supreme Court took expedited action, the lawsuit would not get on the docket until October 2015, with a ruling coming out, most likely, in June 2016.