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.”

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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The Sue-Me President

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