David Rivkin, a partner at the firm Baker Hostetler LLP, served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Elizabeth Foley is a constitutional law professor at Florida International University College of Law.
The Constitution states that it’s Congress’s job to make the laws and the president’s to faithfully execute them. It does not permit a president to suspend a law or grant special dispensations from its requirements. But President Obama has done just these things on numerous occasions, and only the federal courts can preserve the constitutionally mandated separation of powers by definitively rebuffing his illegal actions.
Separation-of-powers lawsuits are generally straightforward: A private party, injured by some unconstitutional government action, sues for relief. Last month, the Supreme Court decided Noel Canning v. NLRB, a suit brought by a bottling company adversely affected by a National Labor Relations Board decision. The court unanimously concluded that the president’s appointments to the board, which had been made without Senate confirmation, violated the Constitution.
When a president suspends a law, however, private parties often lack “standing” to sue, because the act of not enforcing a statute doesn’t injure them in any individualized way. But such suspensions undoubtedly injure Congress as an institution. By arrogating to himself a power to rewrite laws, a president violates his duty of faithful execution and infringes on Congress’s lawmaking prerogatives. A suspension nullifies the law suspended and diminishes Congress’s power.
Such acts trigger a genuine constitutional crisis and undermine our democracy. Federal courts are well equipped to resolve such crises, as Alexander Hamilton explained in Federalist No. 78: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning.”
This week, the House Rules Committee approved a resolution authorizing a lawsuit challenging Obama’s Affordable Care Act suspensions. Skeptics of the lawsuit, which is expected to be authorized by the full House next week, argue that such congressional lawsuits — to date, mostly initiated by Democrats — usually fail because of a lack of standing.
However, there is a simple reason most of these suits have failed: To assert an institutional injury to the House or Senate, courts want proof that the chamber, as an institution — and not a rump group of legislators — believes it has been injured. For example, in its 1997 ruling in Raines v. Byrd , the Supreme Court denied standing to six congressmen who sued President Bill Clinton over the Line Item Veto Act, for three reasons:
First, the injury the lawmakers alleged — a dilution of their voting power caused by future exercises of the line-item veto — was conjectural, since no president had yet exercised that veto.
Second, private plaintiffs (for example, those who would have personally benefited from federal largess but for a presidential line-item veto) would be readily available to challenge the act, so there was no need to resort to legislative standing. Indeed, in the following term, a private plaintiff sued, and the court ruled the act unconstitutional.
Finally, the court denied the legislators’ standing because they weren’t litigating on behalf of their colleagues. In the words of the court, the six “simply lost [the] vote” on the act, declaring: “We attach some importance to the fact that [the six] have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.”
When legislators do represent their institution’s views, however, courts have granted standing. In 1939’s Coleman v. Miller, the Supreme Court granted standing to 21 Kansas senators who had sued the state’s lieutenant governor over his tiebreaking vote in support of a constitutional amendment, which the senators argued nullified the legislative will of the Senate. The court agreed that the Senate had suffered an institutional injury. Significantly, the senators — a majority of the chamber — unequivocally represented their chamber’s institutional position.
A few days ago, in the case of Kerr v. Hickenlooper, the full U.S. Court of Appeals for the 10th Circuit held that five Democratic Colorado legislators had standing on facts far less compelling than those of the House lawsuit. The legislators challenged their governor’s execution of a state constitutional amendment, asserting that the amendment nullified their power to raise taxes. Standing was granted despite the absence of an explicit institutional authorization for the lawsuit by their colleagues.
In numerous other cases, federal courts have recognized a single chamber’s standing to assert institutional injury caused by the executive’s refusal to comply with congressional subpoenas. In these cases, the chamber passed a resolution authorizing litigation to vindicate its institutional injury, which was described as a nullification of chamber’s investigatory power.
As the Supreme Court made clear in Eastland v. U.S. Servicemen’s Fund in 1975, subpoenas are “inherent in the power to make laws” and an “integral part of the lawmaking process.” A failure to comply with a chamber’s subpoena, in other words, is an injury to the lawmaking power of the chamber itself. The institutional injury caused by executive nullification of a subpoena is far less than that caused by executive nullification of a law. If ignoring a congressional subpoena is sufficient to establish legislative standing, ignoring a law should be more than sufficient as well.
The House lawsuit isn’t a stunt, and it isn’t frivolous. Precedent fully recognizes legislative standing to vindicate the nullification injury inherent in a president’s suspension of law. And while impeachment and cutting appropriations are useful political options to consider, neither can force the faithful execution of the law, much less prevent future presidents from continuing the destruction of separation of powers. For a tailored and proportionate legal declaration of the proper dividing line between Congress and the president, courts — and courts alone — are the appropriate venue.
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