The following is a guest post by Tobias T. Gibson, assistant professor of political science at Westminster College.
Many analysts, including Andrew Rudalevige on this site yesterday, have discussed the House’s decision to authorize a lawsuit to overturn President Obama’s delayed implementation of the Affordable Care Act. Some have suggested that the lawsuit is hypocritical; others argue that the House lacks standing to sue; there is fear that House Speaker John Boehner is fanning flames that will only backfire in the November midterms, and (as I have argued here) the suit, even if gets that far, will likely lose in the Supreme Court.
I want to add a new twist to that last point, using the lens of a three-decades-old Supreme Court decision. INS v. Chadha was a 1983 case about legislative vetoes, which are statutory provisions that gave Congress the ability – sometimes via the vote of a single chamber or even just a committee — to override presidential or bureaucratic action taken under that statute. In Chadha, the Supreme Court held that this device – which, after all, gave Congress a second bite at the same apple – was unconstitutional.
If so, this case is illustrative of several issues facing Boehner and the House GOP members. First, gaining standing to sue requires that several standards be met (see this for an excellent discussion). One of those standards, which seems to have attracted far less attention than the “injury” question, is that to bring suit, Boehner must illustrate that a judicial remedy will work. I suggest that Chadha is evidence that in questions of separated powers, Boehner’s burden of proof is very, very high. In Chadha, the president “won,” but legislative vetoes continue. Indeed, it would appear that members of Congress willing to sue the president for executive overreach are guilty of some hypocrisy: “Whoa, Mr. President – although we are happy enough to keep taking unconstitutional actions designed to limit you.”
Further, given Congress’s disregard for the Supreme Court’s attempts to limit overreach by one part of the government (itself), I doubt the long-term wisdom of Boehner’s pursuit of Supreme Court support. The court, as Alexander Hamilton noted in Federalist 78, lacks “the purse” and “the sword,” but this case may at least provide a dagger. Use of the judiciary as a crutch, even if the case itself prevails, may lead to the long-term impotence of Congress, increasing judicial power at its own expense.
If Boehner is serious about limiting executive power, rather than simply this executive’s power, he is better off putting the authorization to sue in his back pocket and leading the House in efforts to define the limits of presidential action. It is, after all, Congress with the constitutional powers to rein in the president. For the history of legislative vetoes after Chadha shows, too, that working around the court can lead to pragmatic power-sharing, and even policy results.