Panel asks: Is the House even allowed to sue President Obama?

Constitutional scholars are divided over whether President Obama overstepped his authority in implementing Obamacare, or if the House even has the right to sue him for it.


By Gabrielle Levy


WASHINGTON, July 16 (UPI) –A House panel got deep into the constitutional weeds Wednesday on the merits of Speaker John Boehner’s lawsuit against President Obama.


A quartet of legal scholars testified before the House Rules Committee to debate whether the House had a case in charging the president with overstepping his constitutional boundaries in implementing the Affordable Care Act — and if they even had the legal standing to bring the lawsuit.


“My fear is that our nation is currently facing the exact threat that the Constitution is designed to avoid,” said committee Chairman Pete Sessions, R-Texas. “Branches of government have always attempted to exert their influence on the other branches, but this president has gone too far.”


Boehner says Obama violated his executive authority by delaying the provision of the law that requires employers to provide coverage for their workers. But the White House has justified those changes by claiming the right to discretion in how to implement the laws passed by Congress from the so-called “Take Care” clause in Article 2, Section 3 of the Constitution, which states “he shall take care that the laws be faithfully executed.”


“The president is not refusing to enforce this law, he is phasing it in in the manner of his and his administrations judgement,” said Simon Lazarus, the senior counsel at the Constitutional Accountability Center. “The administration’s approach to phasing in the ACA is neither partisan nor unprecedented.”


But Professor Jonathan Turley, a constitutional law scholar at George Washington University, said the case of administration actions under the ACA was the latest in a pattern of presidents encroaching upon legislative power.


Some laws, Turley said, are written to allow some flexibility in how they are implemented, but the ACA was not one.


“Agencies took what came out of Congress as ‘ACA 1.0’ and returned it as ‘ACA 2.0,'” he said. “They may be right, but they don’t have the authority to make those decisions.”


Turley rejected the administration’s claim that the changes made were simply the process of going from legal language to actual implementation.


“There are other changes I do not see as the type of standard agency work,” he said. “Or if it is standard, then we have a real problem.”


But even if Boehner and House Republicans prove to be right that Obama exceeded his authority, the House may not have the legal right to take him to court for it.


Although Boehner has dismissed talk of impeachment, that, along with passing new legislation, remains one of the legislature’s principle tools for taking on presidential actions to which it objects.


Walter Dellinger, a former acting solicitor general under President Bill Clinton, said he did not believe the House could provide injury from the president’s actions, and therefore would not find standing — the legal prerequisite to sue — for the case.


Former “Chief Justice Rehnquist, Chief Justice [John] Roberts and Justice [Antonin] Scalia have all said repeatedly that there shouldn’t be lawsuits brought by legislative members, legislative bodies, when they have the tools at their disposal, especially when they have the ability to write new laws,” Dellinger explained.


“If Congress wants to deny that authority [of flexible implementation] or make it clear it did not intend for the president to have that authority, Congress can do so by passing a legislation,” he said. “The fact that there simply is not the political will or the political judgement by two houses to pass such legislation is not a problem for the courts to step in and resolve and effectively pass that legislation at the behest of one house and five members of the Supreme Court instead of the legislation passed by Congress.”

But Sessions, noting that the House is given the responsibility to write laws on budget and tax, said that in his view, the House had a deep interest in the ACA, particularly after the Supreme Court defined the penalty for employers not meeting the mandate as a tax.


Turley agreed, warning that the executive branch has been grabbing power from Congress for years — not just under Obama.


“This is not a question of what should be done,” he said. “It’s a question of how it should be done, and who can do it.”


Ranking member Louise Slaughter, D-N.Y., accused Republicans of pitching a fit over the delays for political reasons, reminding them that the employer mandate delay is actually something many of them had asked for.


“The problem is that this is not what this lawsuit is about,” she said. “It is an election year political attack that masquerades as the defense of the constitutional separation of power.”