Better in their words…

Finally, some are looking for real solutions to the “lawlessness”.
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June 15, 2014 5:48 p.m. ET

President Obama is setting a dangerous precedent by suspending his enforcement of laws on health care, immigration, drugs, banking and so much else, but the courts may soon be asked to throw a brushback pitch. That is, unless a rump group of backbenchers undermines the legal challenge.

Mr. Obama’s practice of unilaterally waiving his duty to faithfully execute statutes has been abetted by a presumed lack of legal “standing” to contest his suspension. To the extent individuals have not suffered concrete injuries that the courts traditionally redress, he feels he can act without consequence to create whole-cloth regulatory regimes. This makes the inherent Article I powers of Congress irrelevant, with perhaps permanent damage to the separation of powers and political accountability. If Mr. Obama gets away with it, the next President probably will too.

But Congress may yet have a way to challenge this usurpation in court. The Washington constitutional litigator David Rivkin and Florida International University law professor Elizabeth Price Foley have developed a legal theory that would allow for judicial review to resolve this dispute between the political branches on the merits. Members of Congress as individuals cannot sue as individuals over passing political disputes. But when the President is usurping core legislative powers, Congress as an institution can sue to vindicate this constitutional injury.

Short of impeachment, there is no other way for Congress to defend its rights, and the Rivkin-Foley case is narrow and limited—and should survive judicial scrutiny. The idea has secured the interest of the GOP leadership, which may soon authorize a House-led lawsuit.

The problem is that a handful of junior Members may move to pre-empt the House challenge with their own claim in a way that could undermine House leaders. As a legal matter, the formal imprimatur of Congress is important and serves as a limiting principle. Institutional challenges will be rare for only the gravest suspensions of law and keep sealed the Pandora’s box that would be the endless deluge of ad hoc political lawsuits against the White House.

Backbench fervor may also get the better of legal precision. The Rivkin-Foley theory would itself set a precedent and depends on careful arguments. Mr. Rivkin was the legal innovator behind the challenge to ObamaCare’s individual mandate and his ideas persuaded a majority of the Supreme Court, even if Chief Justice John Roberts ultimately got cold feet and called it a tax.

But that case was harmed in the lower courts—and in the court of public opinion—by sloppy reasoning from politically ambitious litigators. Rump litigation could interfere by casting doubt on this case too.

The courts have long turned back flailing suits from individual legislators, from attempts in the 1970s to police the conduct of the Vietnam war to more recent efforts by Dennis Kucinich and others over Iraq. But personal pique as much as conviction seems to be a motivation in this dispute. Some Members just don’t like Speaker John Boehner and prefer to sabotage him at every turn, even in this case when he would be doing a public service by hazarding his own reputation and office.

More judges are pushing back against Mr. Obama’s abuses when individuals with standing have sued, and the courts may be open to a larger challenge that resolves the dispute in a constitutionally peaceful way. But defending Congress’s prerogatives requires Congress.

The Standing to Sue Obama – WSJ.