The seismic announcement that House Speaker John Boehner (R-Ohio) will resign at the end of October brings a fresh focus on the House's federal lawsuit against the Obama administration over certain funding provisions in the Affordable Care Act.
Boehner scored a win earlier this month when U.S. District Judge Rosemary Collyer allowed the suit to move forward. At the time, he thanked the court for allowing him to challenge President Barack Obama's "historic overreach" -- arguing, essentially, that the government usurped Congress' constitutional "power of the purse" by spending money lawmakers never approved.
That's the bottom line of Boehner's case, and it's a serious charge that litigation could ultimately prove.
But Collyer's ruling had nothing to do with that. All it decided was whether the House had "standing" to sue another branch of government. Standing is a basic constitutional requirement every litigant must meet, but legal scholars are deeply skeptical that an "institutional plaintiff" like the House can do so. Therfore, the government is now seeking an expedited review of Collyer's ruling by a higher court.
In court papers filed this week, lawyers for the Obama administration called Collyer's ruling a "momentous step," and argued that letting it go unchallenged would greatly damage the separation of powers, opening the door to a flurry of lawsuits between Congress and the president over political questions -- with federal courts acting as referees.
Federal courts should continue to have a restricted role, in order to preserve "the unbroken practice of resolving those confrontations through the give-and-take of the democratic process rather than by [resorting] to the Judiciary," the lawyers argued.
The federal government is exactly right. Historically, Congress has been largely barred from suing the president because this could set a precedent for future political battles. It would simply be too easy for one branch to sue the other over every disagreement -- interpretive disputes, policy differences, enforcement priorities, funding the government, you name it.
Federal courts, which have very limited jurisdiction by design, would be tasked with the impossible: judge who's right in all sorts of power struggles -- from the petty to the truly consequential. And if, God forbid, they ruled one way and not the other, then all hell would break loose against them.
In its filing this week, the Obama administration outlined the parade of disputes that courts could be asked to adjudicate if the House prevails: Congress could sue the president for not appointing judges "with the advice and consent of the Senate," or for overstepping Congress' authority to declare war. Or lawmakers could sue a federal official for receiving a gift or title from a foreign power without congressional approval. Or the Senate could sue the House for adjourning for more than three days without the other's consent. The possibilities are endless.
The Supreme Court shot down claims like these years ago.
In an op-ed published before Collyer issued her decision, Walter Dellinger, a Duke law professor and acting solicitor general under President Bill Clinton, noted that the 1997 Raines v. Byrd case "should be fatal to the House's attempted lawsuit."
In that case, members of Congress challenged the Line Item Veto Act of 1996 -- later ruled unconstitutional -- because it allowed the president to "cancel" certain tax and spending provisions after they'd become law, which essentially robbed lawmakers of their lawmaking authority. Still, the Supreme Court ruled that they couldn't sue.
Nicholas Bagley, a law professor at the University of Michigan, may have put it best: If Collyer's ruling is allowed to stand, it "would mark an unprecedented expansion of judicial authority into interbranch food fights."
And what a food fight this is.
These signs point to a bruising loss for the House on the preliminary issue of standing, for which the Obama administration has a very strong claim on appeal. With Boehner on his way out, the House legal team would be wise to do early damage control and drop this ill-advised lawsuit once and for all.
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