It’s not every day we see history made in the beltway– especially with this Congress- but we got a smidgeon today. In a strict party-line vote, House Republicans voted to authorize Speaker Boehner to sue the president to compel him to obey the law, specifically the employer mandate provisions of the PPACA. Boehner said:
“This isn’t about Republicans or Democrats. It’s about defending the Constitution we swore an oath to,” Speaker John Boehner said. “Are you willing to let any president choose what laws to execute and what laws to change?”
I confidently predict this will be lengthy, complex and expensive; it is entirely likely the suit will take longer than the remainder of the Obama presidency. There’s not a lot of question the President has failed to obey the law. In fact, this is immediately obvious to anybody who cares to read the PPACA and see the specified effective dates are now passed and the law is not being enforced. The question is, what can (anybody) do about it? The key issue here is called “standing”. This is a very complex subject; trying to talk about standing reminds me of the old Monty Python skit that starts “They thought I was daft to build a castle in the swamp…” There’s not a lot to grab a hold of in arguing standing; entire legal careers are spent in this one tiny area. The idea is pretty simple: the Constitution does not permit just any old person to file any old suit they like, just because they’re mad about something. Article 3, Section 2 of the Constitution reads in relevant part:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
As you can see, then, merely being angry isn’t enough; there has to be an actual case, or controversy, at hand before the court system has the authority to deal with it. Courts have guidelines to determine just exactly who does, and does not, have standing to bring suit for redress. Broadly, there are three requirements in US law:
- Injury. The person or organization bringing the suit must have been, or be likely to be, damaged in some manner.
- Causation. The person or organization being sued must be responsible for the damage incurred above.
- And redressability. The court must be able to fashion some remedy for the damage that will alleviate it or compensate for it, at least partially.
There is very little case law in parts of the government, or members of the government, suing other parts. Most of the few suits extant have failed of standing. The (very) general guidelines are, for a House of Congress to sue the administration, the president must have acted in a manner that nullifies a vote in the Congress, and the House bringing suit must show representation of a majority capable of making such a vote.
Which brings us to our little dance today. Obviously, the President acting in contravention of statutory law nullifies a vote in Congress; it could not be statutory law if there had not been a majority in favor at one time. This is also why the House today took a majority vote over it. The majority voting in favor of suing today could have made the vote in question. They didn’t, it was the Democrats; indeed, they’d repeal the law that’s being violated if they could. But that may not matter– they are a majority who could have made the vote being nullified, and that may be all that counts. Have I mentioned the law is very literal? In any event, we’ll have to wait for a court to decide that question, it could go either way. It will probably go both ways, several times, and be unlikely to stop before the Supremes rule on standing– all before we get around to trying the actual suit. Right now, we’re just trying to figure out if it’s ok to have the suit. All this bumf also explains why the House chose to limit their suit to the Obamacare matter– on the advice of their counsel– rather than add in DACA, of the Taliban 5, or whatever; the list of the times the President has ignored the law when convenient is very long. But on the Obamacare matter, they can show a plainly nullified vote, and a majority which could have made it.
So, if this is going to take forever plus three days, and even if they win Obama likely won’t be President any more, why are they wasting their time and the People’s money? The answer– MHO, of course– is they are wasting neither. This is a key question about the Rule of Law, and the Constitutional responsibility of the President to “take care the laws be faithfully executed.” The question being asked is, is the President– any president, not just this one– a citizen of this country and bound by its laws, or is he a despot who may rule by executive fiat?
I invite your attention to the Boehner quote above: the Speaker apparently is not “willing to let any president choose what laws to execute and what laws to change.”
Neither am I.
What about you?