I hear “political experts” on cable TV deride Speaker Boehner’s future lawsuit against the President as a cheap stunt and as an attack on Obamacare. Some in his administration say that the suit will “have no legs,” meaning it will get nowhere because the Speaker has no “standing” to bring a lawsuit.
They are wrong. The suit is not a stunt. Nor is it an attack on Obamacare.
The suit is a means of correcting a harm that has been done to Congress. The U.S. Constitution created the “Separation of Powers” as a check and balance against an abuse of power by one branch of government. Article 1 of the Constitution vests the power of creating laws solely with Congress. Article 2 of the Constitution directs the President to “take care that the laws be faithfully executed,” and “preserve and defend the Constitution.”
Congress makes law and the President must insure that law is faithfully executed. The President cannot ignore or change a law. If the President wants a law to change, he must ask Congress to change it.
If the President unilaterally and arbitrarily fails to execute a law or decides to change it, he has usurped the power of Congress. He has harmed the constitutionally granted power of Congress. Congress cannot allow this to occur. If they do, it will indicate that they agree to an unconstitutional erosion of Congressional power and an undermining of the “Separation of Powers.”
President Obama and his administration unilaterally delayed the implementation of the employer mandate of the Affordable Care Act [Obamacare]. The Obama administration did this without getting the agreement of Congress. The employer mandate, as part of Obamacare and to begin in 2014, requires certain employers with 50 or more “full-time equivalent” employees [working 30 or more hours a week] to be fined if they do not provide health care coverage for their employees.
Speaker Boehner’s suit uses this particular constitutional violation as a clear example of the President’s illegal encroachment on the constitutional power of Congress. The problem with the Obama administration’s action is that it cannot ignore a Bill that a Democratic Congress has passed and the Democratic President has signed into Law. That is a clear violation of Article I, Section 7 of the U. S. Constitution.
Speaker Boehner, representing the Congress, must show an injury caused by the President’s action that can be remedied by a favorable decision. The President’s unconstitutional encroachment on the Congressional power to make law has injured Congress. If the President’s act is allowed to stand it could damage the future of constitutionally granted powers of Congress. A decision in Congress’s favor will remedy the injury to Congress. If the courts look at standing in this fashion, the suit will “have legs.”
President Obama has given Congress no other alternative then to move forward with the lawsuit.