1. Despite arguments the other way, the House of Representatives doesn’t have standing because none of Boehner’s accusations shows any harm to the House as an institution. This wouldn’t be like letting the House appear in the Supreme Court to defend DOMA when POTUS refused to defend it in Windsor, which was a lawsuit involving a concrete fight over Edith Windsor’s tax liability. There, the only “standing” issue was whether a special committee appointed by the House had standing to be heard in support of a law for which the House had voted where nobody else would speak in that law’s support. The Court concluded that the House had standing for that limited purpose, which is not really parallel to letting the House drag POTUS into court to defend his own uses of executive authority.2. Now that we have seen the Boehner complaint, it has become painfully clear that it lacks merit anyway. The nub of the complaint is the claim that President Obama is failing faithfully to execute the Affordable Care Act — the very law that the House has tried fifty times to repeal — because he has delayed the effective date as of which companies with more than 50 employees will be required to extend insurance to their employees if they are to avoid being assessed a tax penalty by the IRS. That delay impacts fewer than one percent of the American workforce because 96% of businesses employ under 50 employees and were not affected by the delay. But even if that tempest in this teapot were good cause to upset the separation of powers by asking the federal courts to direct presidential conduct in the implementation of a law, it’s a tempest without substance. According to the Assistant Secretary for Tax Policy, the delay is based on the Treasury Department’s “transition relief” authority under Section 7805(a) of the Internal Revenue Code, which has been used to delay the application of new mandates of this kind by prior administrations (including the Bush administration) on a number of prior occasions. So the much-ballyhooed Boehner lawsuit turned out to be a great big fizzle when the veil was lifted and the Speaker was pressured to put up or shut up.3. The judicial branch has no role to play in any event. If there were a clear abuse of power, which there hasn’t been, the constitutional remedy would start with an “I” & not an “L” — impeachment, and not litigation. The irony is that Congress would be asking the judiciary to usurp a role the Constitution assigns exclusively to Congress. In a word, the suit should and would be tossed out on “political question” grounds in the same way that the Supreme Court 35 years ago tossed out Senator Barry Goldwater’s suit (joined by some other Members of Congress) against President Jimmy Carter for his unilateral termination of the U.S. trade treaty with Taiwan.The claim of those filing the suit was that Carter’s action in terminating the treaty deprived them of their constitutional role in the treaty process and thus in changing the supreme law of the land. Although one Justice relied in part on the fact that the Senate had not enacted a formal resolution rejecting the President’s claim that he was acting within his authority as the chief representative of the Nation in foreign affairs, the plurality opinion of then-Justice Rehnquist held that the case presented a non-justiciable political question that could never be considered by the Court. Goldwater v. Carter (1979).
July 11, 2014 at 12:45 PM EDT