Here's why Obama told Boehner to go ahead and "sue me!"
Fight, Don’t Sue
Terry Eastland (Executive Editor, The Weekly Standard)
July 14, 2014, Vol. 19, No. 41
This shift, occurring “decisively and dangerously,” says Boehner, violates a basic structural principle of the Constitution—the separation of powers. Now Boehner has announced what he plans to do about it: in a word, sue. That is, have his chamber sue the president for failing to take care that the laws are faithfully executed.
Boehner is right to complain about Obama’s serial executive power abuses. But litigating the take-care clause is an idea that the speaker should reconsider.
From the beginning of the republic to the present, only people whose concrete, personal interests have been damaged by an alleged failure to faithfully execute the laws have been accorded “standing” to have their cases heard in a federal courtroom. Boehner wants standing conferred on the House if its powers are impaired by some alleged failure on the part of a president to faithfully execute the laws. Toward that end, Boehner aims to limit the situations in which the House would sue to those in which no private party is challenging the alleged failure to execute the laws; a majority of the House votes to authorize the suit, thus demonstrating the “institutional” injury; no legislative remedy is available; and the only recourse is the courts.
Boehner has not specified which of the president’s executive actions the House will challenge first in its effort to sell the courts on institutional standing. But if Boehner and his House colleagues succeed in persuading the judiciary to open this door to judicial review, even by a crack, it is likely over time to be opened further, even to the point that the president is granted standing to bring separation-of-powers lawsuits against Congress.
Last year Justice Scalia had occasion to address that prospect. “If Congress can sue the Executive for the erroneous application of the law that ‘injures’ its power to legislate,” he said, “surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that ‘injures’ the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations.” Scalia added, “The opportunities for dragging the courts into disputes hitherto left for political resolution are endless.”
Government by judiciary is not exactly what the Framers had in mind. And it would be ironic indeed if conservatives, who once routinely defended standing as a key doctrine of the separation of powers, now initiated a process that wound up significantly enlarging the role of the judiciary in the structural aspects of government.
Memo to Speaker John Boehner: Be careful what you seek.