House Speaker John Boehner, R-Ohio, believes he has the key to reining in the executive branch: suing President Barack Obama for not faithfully executing the law. But while Obama has repeatedly waived requirements of laws or chosen not to enforce them against whole categories of offenders, there’s a legal requirement known as “standing” that may stop Boehner in his tracks.
As John Malcolm and I detail in this Heritage paper, standing is a constitutional requirement for all lawsuits, including suits filed against the executive branch by private citizens, individual members of Congress, or an entire chamber of Congress. In essence, the standing requirement means that Boehner must be able to show that Obama’s failure to faithfully execute the law actually harms the House of Representatives, leaving it little recourse without court intervention.
Courts are generally reluctant to become referees in disputes between members of Congress and the executive branch when it would force them to police the limits of coequal branches’ powers. In such a case, it’s better for the political branches to work out their differences on their own—and Congress has tools such as appropriations and impeachment to deal with an obstinate president.
For this reason, most successful lawsuits have been filed by private parties that suffered a demonstrable economic injury. A steel company challenged President Harry Truman’s attempt to nationalize American steel mills. After members of Congress failed in their lawsuit challenging the Line Item Veto Act, New York City and a group of businesses got the Act overturned. And recently, a bottling company brought down Obama’s “recess” appointments to the National Labor Relations Board.
Boehner has laid out a plan for suing Obama and other executive branch officials for their failure to fully implement Obamacare. You may be wondering why the party that has tried to defund and repeal Obamacare would sue to get the administration to fully implement that same law. The answer is pretty simple: the president’s failure to implement the law “squelches any opportunity to have a robust, political debate about [its] workability,” as law professor Elizabeth Price Foley pointed out.
Boehner argues that the House can sue (as an institution) if there are no private parties who can sue, there is harm being done to the general welfare and faithful execution of the laws, and no legislative remedies exist. Late last week the House Rules Committee approved a resolution that would authorize such a lawsuit.
Boehner will face an uphill battle in this lawsuit. But critics should not be so quick to dismiss this case. The administration and many others claimed suits challenging Obamacare’s “individual mandate” under the Commerce Clause were laughable and lacked any merit. (Recall then-Speaker Nancy Pelosi responded, “Are you serious?” to someone asking about Congress’s power to enact the individual mandate.)
But ultimately, the Supreme Court agreed that the individual mandate could not be justified under the Commerce Clause, and instead turned the mandate into a tax to uphold it. Boehner’s lawsuit may also surprise its critics.
This article has been modified.