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The Sue-Me President

Yesterday the House of Representatives voted along party lines to sue the President for rewriting key provisions of the Affordable Care Act. The vote has been criticized as a political stunt at best and a prelude to impeachment at worst. But it is neither. It is actually the next logical step in dealing with an administration whose motto has gone from “Hope and Change” to “So, sue me.”

Anyone who has seen Schoolhouse Rock knows that the Constitution establishes clear procedures for the enactment of legislation: bicameralism, presentment, and signature. If a law doesn’t work out as hoped, the same process must be used to amend it. House Republicans argue that by unilaterally extending certain deadlines mandated by the ACA, the president has violated that process.

The stage is set for a classic struggle over the separation of powers. In one corner of the ring are members of Congress who believe that the president is encroaching upon the powers of the legislative branch. In the other corner is a president who believes that he has the discretion to change the law as he sees fit with the stroke of the pen and a wave of the phone.

Such a suit would have been unthinkable little more than a year ago. The notion that a close majority in one house of Congress could sue the president would have been laughed out of federal court. But thanks to one of the signal judicial victories of the Obama administration, U.S. v. Windsor, this case may well find itself on the fast track to the steps of the Supreme Court.

In order to have one’s day in court, a litigant has to demonstrate that he has standing to sue: he must show that he has sustained an actual injury and that the court has the power to provide a remedy. Historically, members of Congress have tried to sue sitting presidents on several occasions; but in each case they were unable to clear the standing hurdle. For example, in 1990, as the tensions leading to the First Gulf War escalated, fifty-four members of Congress sued President George H. W. Bush for encroaching on the powers of Congress by violating the War Powers Act. The case was dismissed on the ground that the claimants did not represent the totality of Congress and therefore did not have standing. In order to sue the president, the Court held, Congress would have to pass a joint resolution authorizing suit.

But last year, something changed. Last year, a narrow majority of the Supreme Court recognized for the first time that an unofficial committee of the House of Representatives,

the Bipartisan Legal Advisory Group (BLAG), had standing to defend a federal statute when the executive would not. The statute in question was the Defense of Marriage Act, and its constitutionality was being challenged by New York widow Edith Windsor. President Obama ordered the Department of Justice not to defend the statute because he believed it was unconstitutional. DOMA would have been dead in the judicial water had BLAG not sought to intervene in the case and defend the statute’s constitutionality all the way to the high court.

The Supreme Court decided by a margin of one vote to recognize BLAG’s standing in the suit on “prudential” grounds relating to the public significance of the questions presented by the suit. It was an unprecedented ruling. As Justice Scalia noted in his dissent, the majority was so “eager—hungry—to tell everyone its view of the legal question at the heart of this case” that it dispensed with the ordinary standing requirements.

The administration got the outcome it wanted in Windsor–the Court declared DOMA unconstitutional–but it set a procedural precedent that may well be about to backfire for the president. Now that the Supreme Court has recognized BLAG’s standing to defend acts of Congress, the federal judiciary will have to decide whether to follow the Windsor precedent and allow the case against the president to proceed or to revert to traditional conceptions of standing and dismiss the suit.

It seems that John Boehner now has the president pinned by the point of his own pen. An administration that has cared less about constitutionally sound process than about politically expedient outcomes may well be about to reap what it has sown.


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