In The Arena Can Obama’s Legal End-Run Around Congress Be Stopped?

David Rivkin served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. He practices appellate litigation with particular focus on constitutional law at Baker Hostetler LLP and represented the 26 states that challenged the constitutionality of Obamacare. Elizabeth Price Foley is professor of constitutional law at Florida International University College of Law. She is the author, most recently, of The Tea Party: Three Principles.

The Constitution, many of us learned in grade school, assigns the legislative power to the legislative branch, not the executive. The Constitution also commands that the president “take care that the laws be faithfully executed.” Unfortunately, President Obama either missed that lesson or considers it inapplicable to his own administration. Thus, his promise-cum-threat, made in the heat of last year’s campaign: “Where Republicans refuse to cooperate on things that I know are good for the American people, I will continue to look for ways to do it administratively and work around Congress.”

Obama has delivered on his promise and worked around Congress with breathtaking audacity. In his signature legislative achievement alone, the Affordable Care Act, the president has unilaterally amended the law multiple times, including delaying the employer mandate and caps on out-of-pocket expenses, waiving the individual mandate for certain people, extending tax credits to individuals who purchase insurance through the federal health insurance exchange and ignoring a statutory requirement that Congress and their staff participate in the exchanges. But the president’s audacity doesn’t stop with Obamacare. He has also suspended immigration law, refusing to deport certain young illegal aliens—a major reform that Congress has refused to enact. Similarly, with the stroke of a magisterial pen, he has gutted large swaths of federal law that enjoy bipartisan support, including the Clinton-era welfare reform work requirement, the Bush-era No Child Left Behind law and the classification of marijuana as an illegal controlled substance.


So much for the separation of powers.

In a desperate attempt to stem the hemorrhaging of legislative power, members of Congress are turning to the courts to enforce their constitutional prerogative. Sen. Ron Johnson (R-Wisc.), for example, filed a lawsuit last week challenging the president’s decision to exempt Congress from the exchanges. And Rep. Tom Rice (R-S.C.) is plotting a broadside attack on executive lawlessness through a resolution, called the Stop This Overreaching Presidency (STOP), that would authorize the House to legally challenge several presidential workarounds. Congressional friend-of-the-court briefs have been popping up in numerous lawsuits challenging Obama administration overreach.

But Congress’s ability to reclaim its powers through litigation faces a substantial roadblock in the form of a presumption against congressional “standing.” Standing is a constitutional prerequisite to maintaining a case in federal court; without it, a case is quickly dismissed. A plaintiff has standing when he or she can demonstrate a concrete, particularized injury, caused by the defendant, which can be remedied by a court. Abstract injuries suffered by society at large do not suffice.

The Supreme Court seemed to shut the door to congressional standing in Raines v. Byrd (1997), a lawsuit brought by six congressmen who challenged the constitutionality of the presidential line-item veto. The court held that the congressmen lacked standing, because the loss of congressional power they lamented was a “wholly abstract and widely dispersed” injury.

The post- Raines presumption against congressional standing is appropriate as a general matter. It is not desirable to allow a single member of Congress, or an ad hoc group of members, to challenge any presidential action with which they politically disagree. Such lawsuits would be abstract, inefficient and potentially destructive to the president’s legitimate authority.

But Raines is best understood as establishing only a presumption against congressional standing that can be rebutted in the right circumstances. Indeed, there are powerful reasons why members of Congress should be permitted to sue the president when the situation warrants.

First, standing should not bar enforcement of the separation of powers when there are no other plaintiffs capable of enforcing this critical constitutional principle. In Raines itself, for example, the court knew that other plaintiffs, who possessed standing, were waiting in the wings to sue the president. Indeed, in the subsequent case of Clinton v. City of New York (1998), standing was established by several businesses, individuals and a city that had lost tax benefits, and the court then declared the line-item veto unconstitutional.

But no other plaintiffs possess standing to challenge several of President Obama’s recent acts. This is because they are “benevolent” suspensions, in which the president exempts certain classes of people from the operation of law. No one person was sufficiently harmed to create standing to sue, for instance, when Obama instructed the Department of Homeland Security to stop deporting young illegal immigrants. Indeed, these actions have helped affected individuals, rather than harmed them, even while shredding the rule of law. In such situations, courts should permit congressional standing as a last resort to enforce the basic constitutional architecture.

Second, in Raines, it was an ad hoc congressional group that filed the suit. The court emphasized that the plaintiffs “have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.” However, when House or Senate rules have a mechanism for designating a bipartisan, official body with authority to file lawsuits on their chamber’s behalf, the case for standing is more compelling . Then, the lawsuit is not an isolated political dispute, but a representation by one of the two chambers of the legislative branch that the institution believes its rights have been violated. These types of serious, broad-based institutional lawsuits should be in a different category than Raines.

In United States v. Windsor (2013), for example, the Supreme Court suggested that such official lawsuits are different in character. In Windsor, a surviving member of a same-sex married couple sued to obtain a federal spousal estate tax exemption. The exemption was denied based upon the Defense of Marriage Act (DOMA), which defined marriage, for purposes of federal law, as one man, one woman. The federal government defended DOMA in the trial court but abandoned its defense at the appellate level. When the Obama administration bowed out, a bipartisan group of House leaders—the Bipartisan Legal Advisory Group (BLAG)—stepped in to defend the law.

The Supreme Court found that BLAG had standing to defend DOMA for several reasons. There was a continuing controversy between the plaintiff and federal government, regardless of who was defending the law. Moreover, House rules authorized BLAG to represent that chamber in litigation. It had every incentive to vigorously defend its law. If BLAG could not defend DOMA, the administration’s refusal to defend could have precluded judicial review, posing “grave challenges to the separation of powers,” the court explained, because “the Executive at a particular moment [would] be able to nullify Congress’ enactment solely on its own initiative and without any determination from the Court.”

These same considerations would exist in a lawsuit challenging President Obama’s benevolent law suspensions. Such suspensions directly infringe congressional power, setting up a conflict between two branches of government. If a bipartisan group authorized by House or Senate rules authorized a legal challenge, it guarantees a vigorous defense of the law and counsels in favor of judicial review. Most importantly, without judicial review of the president’s suspension, there is literally no other way—short of impeachment—to defend separation of powers.

Indeed, the third factor counseling in favor of recognizing congressional standing to challenge benevolent suspensions is the nature of the controversy itself, which is completely unlike the dispute in Raines. There, congressional plaintiffs had failed to stop passage of the Line Item Veto Act and were seeking to undo their political loss via litigation. The court correctly concluded that such “angry loser” situations could not justify congressional standing.

But President Obama’s actions have not been blessed by an explicit act of Congress, as was the case in Raines when the president exercised a line-item veto. To the contrary: The suspensions of Obamacare and other statutes defy the plain language of these laws. The fact that the president is exercising this suspension power openly and even brazenly gravely damages the rule of law. A congressional lawsuit would not be about angry losers, but about Congress defending its legislative power and demanding faithful execution of the laws by the president.

If congressional standing is denied in such cases, there will be no other way to check such presidential usurpation short of impeachment. This is not something the framers of the Constitution would have sanctioned. As the court observed in Clinton, the president does not have “unilateral power to change the text of duly enacted statutes.” That is an important constitutional rule that the current president apparently thinks he can ignore, but the courts must ultimately be willing to enforce.