Last January, the two lawyers behind Speaker John Boehner’s lawsuit claiming that President Obama is not implementing Obamacare fast enough authored an article in Politico Magazine laying out the legal theory behind this litigation. Yet, this article contains a glaring misrepresentation of a recent Supreme Court decision that undermines much of the basis for this lawsuit.
David Rivkin and Elizabeth Price Foley are the lawyers behind Boehner’s lawsuit. In their Politico piece, they correctly acknowledge that the biggest obstacle to suing Obama is something known as the “standing” doctrine. Standing is the requirement that a plaintiff bringing a lawsuit must have actually been injured in some way by the person that they are suing. But neither Speaker Boehner nor any other member of Congress has been injured by President Obama’s decision to delay implementation of a provision of the Affordable Care Act requiring employers with more than 50 employees to pay a fine if they don’t offer a minimal level of health insurance coverage. Boehner has not lost his health insurance because President Obama delayed this provision. Nor has this delay cost Boehner a single cent.
Nor should Boehner be able to argue that he may sue Obama because members of Congress have an interest in seeing the law enforced. In its 1997 decision in Raines v. Byrd, the Supreme Court held that a group of four senators and two congressmen who sued to challenge a federal law “have alleged no injury to themselves as individuals” as “the institutional injury they allege is wholly abstract and widely dispersed[,] and their attempt to litigate this dispute at this time and in this form is contrary to historical experience.”
To get around Raines, Rivkin and Foley site the Court’s more recent decision in United States v. Windsor, the 2013 case striking down the anti-gay Defense of Marriage Act (DOMA). One of the threshold issues in Windsor was whether the Supreme Court could hear the DOMA case at all because, although the Obama Administration appealed a lower court’s decision striking down DOMA to the Supreme Court, the administration then filed a brief indicating that the agreed with the lower court that DOMA is unconstitutional. There was some concern that, because the plaintiff and the defendant in this case both wanted the same outcome, this defeated the administration’s standing to seek review in the Supreme Court.
Rivkin and Foley claim that, in Windsor, the Supreme Court held that the Bipartisan Legal Advisory Group (BLAG), a five member body of the House of Representatives currently controlled by Republicans, “had standing to defend DOMA for several reasons.” According to Rivkin and Foley, this precedent supports their claim that Boehner’s lawsuit should also be allowed to move forward so long as the BLAG joins the suit as a plaintiff.
But this reading of Windsor is objectively false. Windsor held that “the United States retains a stake sufficient to support Article III jurisdiction on appeal and in proceedings before this Court” — thus it was the Obama Administration, not BLAG, who had standing to seek Supreme Court review of DOMA. Indeed, Windsor explicitly states that “the Court need not decide whether BLAG would have standing to challenge the District Court’s ruling and its affirmance in the Court of Appeals on BLAG’s own authority.” Thus, a major prong of Rivkin and Foley’s legal argument rests on an egregious misreading of a famous Supreme Court case.
Admittedly, there is some language in Windsor that, if read out of context, seems to support Rivkin and Foley’s legal theory. Windsor expressed concern that, if the administration’s decision to agree with a lower court could defeat Supreme Court review, that could enable the Executive Branch to “nullify Congress’ enactment solely on its own initiative and without any determination from the Court.” Rivkin and Foley claim that a similar situation exists in their challenge to the president’s schedule for implementing parts of Obamacare — “without judicial review of the president’s suspension, there is literally no other way[,] short of impeachment,” to challenge President Obama’s actions.
It’s not entirely clear that this is true. One example of a plaintiff who would have standing to sue to challenge President Obama’s decision to delay the legal requirement that employers must provide a certain level of health insurance to their workers is an actual worker who does not have an employer-provided health plan because of Obama’s decision. That worker, unlike Speaker Boehner or the BLAG, would have actually been injured by President Obama’s allegedly illegal action, and thus they would have standing to move forward with a lawsuit.
But Rivkin and Foley’s argument falls apart for several other reasons as well. As Professor Nicholas Bagley points out, it is simply untrue that there is no remedy available to Boehner “short of impeachment” if the courts do not hear his case. “Congress could, for example, enact a statute withdrawing the President’s claimed enforcement discretion. Congress retains the power of the purse, giving it enormous leverage in negotiations with the President. . . . These options may not be politically viable, but that just means Congress isn’t willing to use its power, not that it lacks the power.”
Similarly, Rivkin and Foley’s argument that the courts must allow Boehner’s lawsuit to move forward or else no one will have standing to sue isn’t an argument that has earned a great deal of sympathy from the Roberts Court in the past. As Justice Samuel Alito wrote just last year on behalf of himself and his four conservative colleagues, “[t]he assumption that if [a particular party has] no standing to sue, no one would have standing, is not a reason to find standing.”
Additionally, the portion of Windsor Rivkin and Foley quote to support their proposition that Boehner’s lawsuit must move forward to prevent an allegedly illegal action from going unchallenged does not actually support their argument if it is read in context. As the Court lays out in Windsor, there are actually two parts to the standing doctrine. If no party has standing to invoke the jurisdiction of a federal court — that is, if no party has suffered a redressable injury — then the courts lack what is known as “Article III standing.” Article III standing is a constitutional limit on the federal judiciary’s power. If no party has Article III standing, then it is unconstitutional for a federal court to hear their lawsuit.
The Supreme Court has also recognized that there are certain cases where, despite the fact that Article III standing exists, courts should nonetheless decline to hear the case because of concerns related to “prudential standing.” Prudential standing “embodies `judicially self-imposed limits on the exercise of federal jurisdiction.’” Thus, while an absence of Article III standing forbids the Supreme Court from hearing a case even if it may want to, prudential standing is a court-created limit that the Supreme Court may create exceptions to.
Without diving too deep into the weeds of an arcane and complicated area of federal law, it is sufficient to point out that Raines held that members of Congress typically do not have Article III standing to challenge an application of federal law, while the language Rivkin and Foley rely upon in Windsor was part of a larger discussion of prudential standing. Rivkin and Foley have committed the legal equivalent of citing a doctrine about apples in order to justify a lawsuit about oranges.
All of this is said with a standard caveat. The Roberts Court doesn’t always follow past precedents, and they’ve been particularly willing to abandon established legal doctrines where Obamacare is involved. So there’s no guarantee that Boehner will lose. Nevertheless, if he wins, it will be in spite of the flawed legal argument Rivkin and Foley offered last January, not because of it.