Opinion and Taking Issue

RUSTHOVEN: Lawsuit could rein in Obama overreach

July 19, 2014

RusthovenSpeaker John Boehner’s plans to have the House file a lawsuit challenging President Obama’s refusals to enforce federal laws has elicited predictable derision in liberal and media circles (which overlap on a Venn diagram).

Prominent Democrats rushed to heap scorn. Former Clinton aide Paul Begala was typical, labeling Boehner’s suit “nutty” and “frivolous.” But Begala frets this “political puppet show” might succeed with “activist” GOP Supreme Court justices.

Not to worry, says Senate Democratic leader Harry Reid. Affecting his faux folksy persona, Reid took the floor to proclaim “Judge Judy would throw this case out in half a second.” Reid probably knows no more about Judge Judy than he does about constitutional law.

On a more elevated plane, liberal legal academia is confident the case will fail for lack of standing. “Standing” means having a sufficiently concrete interest to bring a lawsuit. This has a constitutional dimension in federal courts, since judicial power under the Constitution is confined to actual “cases” and “controversies” (as opposed to disputes whose resolution has no monetary or other substantive impact on the disputants).

Thus, Harvard constitutional law professor Laurence Tribe says the suit involves no “harm to the House as an institution.” He adds that courts would also refuse to decide it under the “political question” doctrine, by which the judiciary leaves to the political branches (the executive and legislative) fights that judges are ill-equipped to referee.

As a one-time student of Tribe’s—so were Obama and Chief Justice Roberts, who may have somewhat larger roles here!—I’m not so sure. Tribe embraces some convoluted constitutional interpretative approaches (his adjectives would be “complex” and “nuanced”), under which the Constitution almost always ends up meaning whatever coincides with his reliably liberal political convictions.

More to the immediate point, Tribe himself wasn’t so sure just a week before expressing the views just summarized. Here’s what he said then:

“The House as an institution may well have standing to challenge at least some of the president’s unilateral suspensions and revisions of statutory deadlines and specific mandates in the Affordable Care Act and other congressional legislation, including legislation governing deportations. It’s not an open-and-shut case, but the House would have at least a plausible basis for claiming standing.”

Well put, professor. None of us can be sure how courts will sort this out. But here are things we can know:

1. Folks calling Boehner’s suit absurd also called it silly to challenge Commerce Clause power to pass Obamacare. The Supreme Court ruled otherwise, upholding the insurance mandate only as a “tax”—which the president and Democrats had denied.

2. The president has precipitated the current confrontation by refusing to enforce laws he took an oath faithfully to execute. This includes countless unilateral rewrites of Obamacare. His insistence on going it alone is such that he promises to veto legislation enacting the very changes he has unlawfully made.

3. We are headed toward a constitutional crisis, which will come into sharper focus if Republicans win the Senate.

The Constitution provides an avenue to redress presidential refusal to execute the law. It’s called impeachment. No one, other than people like Sarah Palin, wants to go there. Not Boehner. Not this author. Not most Republicans, or most Americans.

Boehner’s suit might provide an alternative, far less disruptive way, to address and defuse a growing crisis of Obama’s own making.•

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Rusthoven, an Indianapolis attorney and graduate of Harvard College and Harvard Law School, was associate counsel to President Reagan. Send comments on this column to ibjedit@ibj.com.

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