Category Archives: US Constitution

Standing to Sue

If this issue is not addressed and “we” continue to allow the executive branch to abdicate its accountability to enforce the laws of the land, I fear we will come to regret it.
The legal left and media are always last to know, but there are the makings of a correction in how the courts police conflicts between the political branches. President Obama’s serial executive power abuses—on health care, immigration, marijuana and much else—may be inspiring a heathy rejoinder.

Under the Constitution, Congress is supposed to create and amend laws and the President to faithfully execute them, but Mr. Obama has grabbed inherent Article I powers by suspending or rewriting statutes he opposes. The President has usurped Congress with impunity because he assumes no one has the legal standing to challenge him.

Most of the time people who are exempted from laws do not suffer the concrete injuries that the judiciary can redress, while the courts maintain a presumption that Members of Congress also lack such standing. In 1997’s Raines v. Byrd, the Supreme Court rejected a lawsuit against the line-item veto brought by six Congressmen because the loss of legislative power they challenged was a “wholly abstract and widely dispersed” injury.

But that doesn’t mean that conduct that marginalizes the legislative branch is absolved of judicial review. In one notable case, Wisconsin Senator Ron Johnson is suing the White House over the ObamaCare regulatory carve-out that conjured up special subsidies for Members and staffers who were supposed to give up federal employee health benefits to join the insurance exchanges.

Mr. Johnson argues that because Members must designate which staffers do and don’t participate, the rule imposes a nontrivial administrative burden—i.e., he has standing to sue because the rule harms his office, not because he is a U.S. Senator. More to the point, Mr. Johnson claims that the rule forces him to become personally complicit in law breaking and thus damages his political reputation. Several appeals court precedents hold that elected officials who must maintain the public trust suffer injuries when their credibility is undermined, including a 1993 D.C. Circuit ruling by now-Justice Ruth Bader Ginsburg.

The White House claims Mr. Johnson lacks standing, but that’s because the lawyers don’t want to get near the merits. The real import of his lawsuit is that it invites the courts to restore the proper separation of powers amid executive encroachment.

The Washington lawyer David Rivkin and Florida International University law professor Elizabeth Foley suggest a broader approach that doesn’t require legislators to act as individuals. They’re trying to persuade House leaders to mount an institutional challenge to the White House rewrite of ObamaCare’s employer mandate. Here the President is defying the plain language of laws and undermining legislative power. The courts ought to extend standing to the House as an institution to vindicate this injury. Short of impeachment, there is no other way for Congress to defend its constitutional prerogatives and the rule of law.

Earlier this year the Tenth Circuit used this theory to grant legislative standing to a group of liberal Colorado representatives to challenge that state’s taxpayer bill of rights. Last year the Supreme Court also granted standing to Congress’s Bipartisan Legal Advisory Group to defend the Defense of Marriage Act.

The White House had refused to advocate for DOMA based on a constitutional theory that then had no established judicial precedent. The Court ruled in Windsor that deliberately making the Defense of Marriage Act a legal orphan “poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’s enactment solely on its own initiative and without any determination from the Court.”

All this recalls the revival of federalism under the William Rehnquist Supreme Court. From the New Deal to the late 20th century there were few tangible protections of the powers the Constitution reserves to the states or the people, and any doctrine that limited federal incursion was assumed a dead letter.

But beginning with the 1992 landmark New York v. United States, the Court began to rediscover the government of enumerated powers that the framers envisioned. A 6-3 majority overturned a 1985 federal law that ordered states to dispose of radioactive waste within their own borders because “the accountability of both state and federal officials is diminished.”

The ballot box is the most important constitutional check on government, but voters can’t know whom to reward or punish if Congress impresses states into federal service. Political actors must “suffer the consequences,” Justice Sandra Day O’Connor held in N.Y. v. U.S., if their decisions turn out to be “detrimental or unpopular. But where the federal government directs the states to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.”

This jurisprudence turned on the “vertical” separation of federal and state power. Mr. Obama’s suspension adventures pose precisely the same questions about the “horizontal” division of powers, and the same logic applies. If the executive branch is allowed to rewrite or suspend statutes, it is harder and in some cases impossible for voters to know which parties and spheres of the government to hold responsible. Political accountability is undermined.

The legal establishment will dismiss Messrs. Johnson and Rivkin as cranks with no hope of success, but it has been wrong before. The President thinks he can disregard the laws, but judges are paid to defend them.

Standing to Sue Obama –


Is ObamaCare a Law?

Liberals keep dismissing challenges to ObamaCare, political and legal, so it’s no surprise they mostly ignored last week’s oral argument at the D.C. Circuit Court of Appeals that could send another case to the Supreme Court. Coming in the week the White House wheeled out its 38th rewrite of the law, Halbig v. Sebelius is even more important for the contours of executive power and the rule of law.

The case asks whether the Affordable Care Act, which limits insurance subsidies to “an Exchange established by the State,” also authorizes subsidies for the 36 exchanges established by the federal government. The courts tend to give the executive branch deference in interpreting ambiguous statutes, but here the Administration is asking the court to declare that the statute unambiguously means the opposite of what the plain language says.

This ought to be a straightforward matter of statutory construction. Democrats put conditions on the subsidies to pressure Governors to join ObamaCare on the familiar U.S. federal-state cooperative model, but they never anticipated lasting unpopularity and opposition. To resolve this political problem, the IRS brushed off the statute and expanded the subsidies to both types of exchanges.

Arguing before a three-judge panel, Assistant Attorney General Stuart Delery pointed up “interpretive tension” among various complex provisions. But he also suggested that reading the text literally would undermine ObamaCare’s purpose and structure of a nationwide system of subsidized health care. Try to parse that one: This is a law that its defenders argue will self-destruct if implemented as drafted by its architects.

Echoing liberal supporters of the Administration, Judge Harry Edwards repeatedly accused plaintiffs counsel Michael Carvin of purely political motives. “What you’re asking for is, come on, put it on the table: Destroy the individual mandate, which guts the statute. That’s what this case is about. There’s nothing hidden about that.”

That’s pretty rich given that the White House has itself gutted the individual mandate for its political purposes. Mr. Carvin represents taxpayers and businesses who would be otherwise exempt from ObamaCare mandates if the subsidies were withheld in their states, and thus will suffer injuries under the unlawful IRS rule. Judge Edwards went on to angrily demand: “Who cares? What difference does it make who sets up the subsidy? . . . You have a provision that says the state’ll do it, the feds’ll do it—what difference does it make who does it?”

Well, the states care a great deal about their rights and responsibilities under dual sovereignty federalism. Taxpayers also have an interest in overturning an IRS rule that exposes them to tax liability harm.

But the larger “who cares?” question turns on fidelity to the law and what obligation if any judges have to salvage an unworkable or badly designed program created by the political branches. As Judge Thomas Griffith ruminated, “If we know a clear purpose of Congress, and they don’t legislate clearly enough to achieve that purpose, is it our job to fix the problem?”

Democrats clearly had the grandiose “purpose” of national health care in mind, among hundreds of other motives in transforming one-sixth of the economy. But their sausage-making was also marbled with flaws, as its multiple administrative rewrites show. Their regrets over their own mistakes do not now entitle them to create statute-editing powers on the fly, which would be the result if the judiciary endorses a President’s power to enforce only those parts of laws he likes.

And would vacating the IRS rule really “gut” ObamaCare? It would surely complicate it. But then maybe more states would set up their own exchanges to get the subsidies. Or the White House could ask Congress to fix the law. President Obama conceded last summer that he favors “tweaks that don’t go to the essence of the law” and “in a normal political environment” he’d ring up John Boehner to negotiate a settlement.

But the President added that Republicans have an “ideological fixation” about ObamaCare, and therefore the ordinary legislative process is too fraught. But the Constitution doesn’t say Presidents can rewrite laws merely because asking Congress to change them would be difficult. The Administration’s real argument in Halbig is that interpreting the law as written would be politically bad so an accurate, faithful interpretation of the statute is out of the question. Judges aren’t supposed to lean on laws to produce partisan outcomes.

The “difference” it makes how Americans can access subsidies is between the faithful execution of the laws and anything-goes political and legal improvisation. As Chief Justice John Roberts famously wrote upholding the insurance purchase mandate, “It is not our job to protect the people from the consequences of their political choices.” It is also not their job to protect politicians from the consequences of their policy choices.

Is ObamaCare a Law? –


Freedom of Speech Wins

From Chief Justice John Roberts’s majority opinion in the Supreme Court’s April 2 decision in McCutcheon v. Federal Election Commission eliminating caps on the total amount of money that individuals can donate in a single election season:

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.

The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others.

Many people might find those latter objectives attractive: They would be delighted to see fewer television commercials touting a candidate’s accomplishments or disparaging an opponent’s character. Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition. Indeed, as we have emphasized, the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.”
Notable & Quotable.


Obama’s Political Surveillance

He proposes to change antiterror programs that he admits are necessary and haven’t been abused.
President Obama finally joined the surveillance debate on Friday with a conflicted address, and perhaps it would have been better had he stayed out. His new antiterror proposals will do little to secure American privacy but they might make the country less safe.

Rhetorically Mr. Obama tried to satisfy all sides, meaning he fishtailed between irreconcilable positions. There’s what the President knows to be the reality that these programs are valuable and haven’t been abused. Then there are the critics that he is attempting to appease lest they succeed at turning Congress and the public against the programs.

Mr. Obama could rally enough support on Capitol Hill to retain the programs if he wanted, and such an appeal would include some of his Friday highlights: The world is more dangerous than ever due to “threats like terrorism, proliferation and cyber-attacks,” and post-9/11 surveillance has “prevented multiple attacks and saved innocent lives, not just here but around the globe as well.” Nothing suggests that “our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.” All of this is true.

But Mr. Obama then argues that the National Security Agency must be more constrained because of “the danger of government overreach.” The most state-aggrandizing President since LBJ, and man who won’t discipline the IRS for its abuses, also invoked America’s “traditions of limited government.” This is doubly ironic given that the White House widely leaked to reporters that Mr. Obama believes he can be trusted with the surveillance status quo but a future Republican can’t.

Thus Mr. Obama announced that he will pursue or impose changes to NSA practice that he implicitly concedes are unnecessary. Rarely has national defense been so needlessly politicized.

Mr. Obama asked Congress to end the bulk collection of telephone metadata by government, even as he explained that the program would be vital “if a bomb goes off in one of our cities and law enforcement is racing to determine whether a network is poised to conduct additional attacks.” Some third party will do the job instead, and the NSA will only conduct individual searches with court approval.

Mr. Obama never explained why a nonprofit consortium would be more trustworthy, secure or less prone to political spying than the NSA, nor why privacy would be any more protected. Let’s hope the folks behind Target’s cyber security aren’t hired to do the job. The result of these changes could be that Chinese hackers will have better access to U.S. metadata than the NSA.

The Attorney General will also ask the Foreign Intelligence Surveillance Court to start reviewing all metadata queries during the “transition” to this third-party system. Come again? The judiciary is vested with the power to arbitrate cases under laws passed by Congress, not create ad hoc policy with the executive, so this is one more example of presidential buckpassing.

The President says the NSA will abandon its standard practice of following suspicious phone call patterns over three “hops,” or phone calls of separation, and instead go with merely two. He offered no rationale for not following as far as the data lead, so this is also a win for politics and terror cells three steps removed from a tip.

The worst idea is what he called “the unprecedented step” of extending privacy rights to foreigners, and he’s right about unprecedented. Heads of state deemed friendly will enjoy immunity from U.S. eavesdropping as their spooks continue to spy on the U.S., while other still-to-be-devised protections like those that used to apply only domestically will flow overseas to non-U.S. nationals. This will have no reciprocal benefit since no other intelligence service will believe the U.S. would be so dumb as to hamstring itself this way.

Even when he defended the NSA, Mr. Obama couldn’t resist his moralizing impulses. He observed that “totalitarian states like East Germany offered a cautionary tale of what could happen when vast, unchecked surveillance turned citizens into informers, and persecuted people for what they said in the privacy of their own homes.”

To say that an evil communist dictatorship explains anything about a self-governing, politically accountable democracy is insulting to Americans. No wonder our intelligence personnel are increasingly demoralized. Such rhetoric merely empowers the paranoids and incendiaries, who still say his reforms are inadequate because they don’t kill surveillance altogether.

The saving grace will have to be Congress, believe it or not. Speaker John Boehner responded with a 115-word statement that was far more eloquent than Mr. Obama’s 43-minute speech, declaring that the House “will not erode the operational integrity of critical programs that have helped keep America safe.” His fellow Republicans should follow that lead.

Obama’s Political Surveillance –