By Cass R. Sunstein
One of the most appealing features of modern conservative thought is its insistence on fidelity to the Constitution. Whether or not we endorse “strict construction,” or the claim that the Constitution means what it originally meant, it is certainly honorable to emphasize that public officials are bound by our founding document. How odd, then, that prominent conservatives have been embracing Speaker John Boehner’s proposed lawsuit by the House of Representatives against President Barack Obama — an idea that reflects a stunningly cavalier approach to the Constitution.
Article III of the Constitution restricts judicial power to “cases” and “controversies.” A case or controversy does not arise simply because someone has behaved unlawfully. To bring a lawsuit, you must have “standing,” which means that you have to establish a “personal injury,” one that is both concrete and particularized. For example, you cannot sue the Environmental Protection Agency simply because you believe that it has violated the law. You must show that any such violation injured you — perhaps by forcing you to install expensive pollution control equipment, or perhaps by exposing you to harmful levels of pollution.
Consider Boehner’s potential lawsuit in this light. While the details have not been worked out, his written memorandum asks the House of Representatives to authorize a lawsuit “in an effort to compel the President to follow his oath of office and faithfully execute the laws of our country.” Thursday, Boehner announced that the lawsuit would focus on the administration’s decision to delay the employer insurance mandate in the Affordable Care Act. In the nation’s history, many presidents have been accused of failing to execute the laws faithfully, and no federal court has ever authorized such a suit. But put history to one side. Where’s the case or controversy?
The closest precedent is Raines v. Byrd, decided in 1997. In that case, six members of Congress sued the Office of Management and Budget on the ground that the Line Item Veto Act was unconstitutional. They contended that they were personally injured, because the act diminished the effectiveness of their votes on appropriations bills, by allowing the president to “cancel” specific tax spending measures. They pointed to a specific provision of the act that authorized “any Member of Congress” to bring suit to challenge its constitutionality.
The Supreme Court refused to hear the case. It emphasized that for members of Congress to obtain standing, it would not be enough to point to some “abstract dilution of institutional legislative power.” The members of Congress had “alleged no injury to themselves as individuals,” and “their attempt to litigate this dispute at this time and in this form is contrary to historic experience.”
Boehner’s proposed suit is even weaker in two respects. In the 1997 case, at least, the Line Item Veto Act purported to provide some legal authorization to initiate a lawsuit. Boehner seeks authorization only from the House, which lacks power to enact legislation on its own. And in the Raines case, the members of Congress complained that the line item veto would dilute their voting power in a specific way – by negating their votes on appropriations bills. Boehner’s claim is breathtakingly broader: Whenever the House of Representatives thinks that the president has violated the law, it can authorize itself to sue him.
It is true that in the Raines case, the Supreme Court attached “some importance” to the fact that neither the House nor the Senate had authorized the particular members “to represent their respective Houses of Congress in this action.” The court also noted that a constitutional challenge could be made by others, including people in the private sector, who might be able to show that they suffered a real injury as a result of the act. But Boehner, and those who support his proposal, is making far too much of these points. The logic of the court’s opinion is clear: Members of Congress cannot sue the executive branch simply on the basis of “a loss of political power,” an institutional injury that “is wholly abstract and widely dispersed.”
It is ironic that Boehner’s memorandum speaks of separation of powers, the oath of office and constitutional principles, which his proposed lawsuit would defy. Article III is emphatically part of the Constitution, and as the court has said, “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal court jurisdiction to actual cases or controversies.” If it is actually brought, the House’s lawsuit, purportedly designed to promote conformity to the Constitution, will almost certainly be promptly dismissed — on constitutional grounds.
Cass R. Sunstein, the former administrator of the White House Office of Information and Regulatory Affairs, is a professor at Harvard Law School and a Bloomberg View columnist.