Throughout American history,
That may change as House
As evidence, the GOP will point to Obama's decision to delay enforcement of a provision of his signature healthcare law, the Affordable Care Act, which requires large employers to offer health insurance. According to the law passed by Congress, the mandate was to take effect "beginning after December 31, 2013." But amid problems with the rollout, Obama delayed it until Jan. 1, 2015.
Although House Speaker
Politics aside, legal experts see four reasons a lawsuit is likely to fail:
Lack of standing
The Supreme Court has made it clear in recent decades that members of Congress have no standing to file constitutional lawsuits. The justices have insisted plaintiffs must show they suffered a "personal injury" and are not merely in court to argue an abstract point of law. They are often loath to be drawn into political battles better left to the legislative branch and president.
In the 1970s, Sen. Edward M. Kennedy (D-Mass.) sued Republican
Just last year, the high court expounded on its views about lack of standing when it dismissed the defense of California's
"To have standing, a litigant must seek relief for an injury that affects him in a personal and individual way," said Chief Justice
Cornell Law professor Michael Dorf said the high court's insistence on personal standing means the House Republicans "face an insuperable obstacle" in getting their case before a judge.
But Washington attorney David B. Rivkin, who helped launch the suit that challenged Obama's healthcare law as unconstitutional, dismissed the skeptics. Though the high court ruled individual lawmakers cannot sue, Rivkin and Elizabeth Price Foley, a law professor at Florida International University, predict the justices will allow the House to sue as a law-making body.
Presidents are given leeway to enforce laws
Obama's supporters point out that he is not the first president to postpone enforcement of a law or to miss a deadline to issue new rules. Democratic lawyers note that the Clinton and
Simon Lazarus, a lawyer for the Constitutional Accountability Center, told a House committee recently that there was "no material difference between these decisions by the Clinton and Bush administrations to postpone regulations and the Obama administration's approach to implementing" the Affordable Care Act. This is "not a refusal to enforce the law, but a phase-in, and that's different," he said.
Moreover, lawyers say it is routine for agencies, such as the Environmental Protection Agency, to miss deadlines or order delays in issuing new rules established by Congress.
Constitutional experts say it has been understood that the chief executive has some discretion in enforcing the law, just as police officers have discretion not to write a ticket for every driver who exceeds the posted speed limit.
"Courts are very reluctant to tell the executive how to enforce the law," said Tara Leigh Grove, a law professor at
Lazarus predicts judges "will see this as a political maneuver," because it will be "apparent to all that faithful execution of the Affordable Care Act is the last thing in the world that the proponents of the suit hope for."
No easy legal remedy
Typically, a plaintiff sues and asks for compensation for his loss. In a constitutional suit, the proposed remedy may be a ruling that strikes down a law.
But it is not clear what a judge could order as a remedy if he or she decided the president had wrongly delayed enforcement of the employer mandate.
And the time for a decision is short. The insurance mandate for large employers is due to take effect in 2015, while the mandate for employers with 50 to 100 employees is due to take effect at the start of 2016. If the suit is still pending, it could be declared moot then.
Impeachment the proper forum
While the Constitution does not authorize the legislative branch to sue the president, it says the
But this process requires far more evidence of wrongdoing than a delayed phase-in of a new law. And impeachment can carry a high political cost. When House Republicans voted to impeach President Clinton in 1998, his popularity rose. Republicans lost seats in the fall election, and Speaker Newt Gingrich resigned.
Last year, three of the Supreme Court's leading conservatives warned House Republicans against running to court. Justice
This matter should have "been left to a tug-of-war between the president and Congress, which has innumerable means (up to and including impeachment) of compelling the president to enforce the laws it has written," Scalia wrote.
Allowing lawmakers to sue, he warned, would unwisely create a whole new "system in which Congress and the executive can pop immediately into court, in their institutional capacity, whenever the president refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress' liking."