On Obama lawsuit, Boehner should listen to Justice Scalia

By Jonathan Capehart


Dana Milbank does his usual masterful job highlighting the ridiculousness of yesterday’s House Rules Committee hearing on Speaker John Boehner’s resolution seeking authorization to sue President Obama for allegedly failing to follow the Constitution in delaying the employer mandate of the health-care law. Milbank called it “an amateur hour — or an amateur five hours.” Yet, in that mess of a hearing came expert arguments against Boehner’s folly.


Law professors Elizabeth Price Foley of Florida International University and Jonathan Turley of George Washington University believe that Boehner has a case to make against presidential overreach and will have standing in the courts to make it. Walter Dellinger, former head of the Office of Legal Counsel under President Clinton and current law professor at Duke University, and Simon Lazarus, senior counsel at the Constitutional Accountability Center, did an effective job of bringing reality to the table.


Faithful readers already know Laurence Tribe’s four reasons that the Boehner litigation is going nowhere. Lazarus and Dellinger added even more context. Lazarus’s prepared remarks were unsparing in their jaundiced view of the resolution.


Regrettably, I must observe, as I did before the House Judiciary Committee in December 2013, that these claims of wayward Executive conduct import the Constitution into what are, in reality, political and policy debates. They mock the text and original meaning of the Take Care [“that the laws be faithfully executed”] clause. They flout long-established Supreme Court precedent applying the relevant constitutional provisions. And they contradict the consistent practice of all modern presidencies, Republican and Democratic, to responsibly implement complex and consequential regulatory programs like the ACA. These claims fault the Obama Administration for making necessary adjustments in timing and matching enforcement priorities with resources and technical, practical, humanitarian, and other exigencies. But exercising presidential judgment in carrying laws into execution is precisely what the Constitution requires.


Lazarus then went through a detailed discussion of the Obama administration’s actions in delaying the employer mandate of the Affordable Care Act. And then he cited examples of other presidents doing the same thing. For instance, President George W. Bush “waived enforcement of the unpopular late enrollment penalty for one year for some beneficiaries.” And that was just one of many actions Bush took involving implementation of the 2003 Medicare Modernization Act. Lazarus derided Boehner’s effort as “A president’s political opponents seeking to inflate a routine administrative practice, a reasonable and necessary feature of all administrations’ roll-outs of complex laws, into a constitutional transgression and – literally – make a federal case of it.”


Walter Dellinger, Simon Lazarus, Elizabeth Price Foley  and Jonathan Turley  yesterday. (Win McNamee/Getty Images)

From left, Jonathan Turley, Elizabeth Price Foley, Simon Lazarus and Walter Dellinger yesterday. (Win McNamee/Getty Images)

Dellinger took on the issue of standing and took direct aim at Turley’s assertion that “executive power in the United States has continued to increase” and that Congress “has failed to aggressively fight this aggrandizement of power for decades, through litigation or other means.” If federal judges took the case, Dellinger argued, it would be “an unprecedented aggrandizement of the political power of the judiciary.” To emphasize the legal basis of his point, Dellinger used majority and dissenting opinions from the two Supreme Court cases that invalidated the so-called Defense of Marriage Act (United States v. Windsor) and allowed same-sex marriages to resume in California (Hollingsworth v. Perry).


As we know, for Boehner and the House to have standing, they have to show they suffered a personal harm. Dellinger uses the majority opinion from Chief Justice John Roberts in Perry to buttress that point.


Recently, in Hollingsworth v. Perry (June 24, 2013) in an opinion by Chief Justice Roberts, the Court confirmed this understanding of Marbury: “To have standing, a litigant must seek relief for an injury that affects him in a personal and individual way… This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.” Hollingsworth v. Perry, 133 S. Ct at 2659, 2662…..


We also know that in order for federal courts to even hear the case, they would have to get over their long-standing aversion to getting involved in political disputes between the legislative and executive branches when other means are available to resolve them. Dellinger uses a dissenting opinion from Justice Antonin Scalia in Windsor to hammer this point home.


If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “. . . or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Windsor, 133 S. Ct. at 2704–05 (Scalia, J., joined by the Chief Justice and Justice Thomas and questioned in part only by Justice Alito).


The next sentence in that Scalia dissent is instructive. “Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor,” he wrote. Would that Boehner and his fellow protectors of legislative prerogatives and the Constitution listened to him.