There is disagreement about the merits and wisdom of a lawsuit filed this week by the House of Representatives against President Obama for his refusal to enforce various provisions of the Affordable Care Act, even among those who have opposed the president’s decisions. David Rivkin and Elizabeth Price Foley, the attorneys who crafted the suit, explain its rationale in “The Case for Suing the President.” (I hope the link remains ungated, but if not, search “rivkin foley wsj” and you might get in.) The subtitle: “Rewriting ObamaCare laws on the fly is a violation of the constitutionally mandated separation of powers.” They explain the duties assigned to the branches of government by the constitution, certain principles underlying the separation of powers, and they review some relevant case law. They say:
… the Supreme Court has come to recognize that preserving the constitutional separation of powers between the branches of government at the federal level, and between the states and the federal government, is among the judiciary’s highest duties.
A separate WSJ editorial (I hope ungated) notes some of the doubts about the merits of the suit. Courts have ruled that individual lawmakers do not have standing to bring a suit of this kind, but:
…the House is making an institutional challenge to executive abuse. The courts may take such a challenge seriously, in particular because the suit claims that Mr. Obama’s abuses are usurping the institutional power of Congress under the Constitution. [emphasis added]
Some salient points are established in “Top Ten Myths about the House’s Proposed Suit Against Obama.” My favorite is myth #8: “It’s a huge waste of money since the suit is just a political stunt.” Many contend that the suit will be dismissed on the grounds that it is political, but this argument is a straw man. Conflicts between the branches of government will often have a political dimension. The reality of politics does not diminish the importance of the principles at stake. Quite the opposite.
Surprisingly, Judge Andrew Napolitano believes that the lawsuit is frivolous because it is political, despite his strong condemnation of Obama’s many attempts to exploit executive privilege. He explains his view in “Is the President Incompetent or Lawless?.” Napolitano’s solution to this constitutional crisis is the more extreme impeachment route, which is more risky politically for those pressing the case, even with a GOP landslide in this fall’s election. Nevertheless, the judge asserts that impeachment is the correct constitutional remedy.
I view the lawsuit against Obama as politically risky, but I believe it has merit and may well succeed.