Last Wednesday, July 16, 2014, the House Rules Committee held a five-hour hearing to consider a draft resolution “providing for authority to initiate litigation for actions by the President inconsistent with his duties under the Constitution of the United States.” It has been decided, although it is unclear whether this decision has yet been formalized in any way, that the potential litigation will focus on the Obama administration’s implementation of the Affordable Care Act, particularly the failure to implement the employer mandate in accordance with the January 1, 2014 effective date set forth in the law.
Notwithstanding some media reports that focused on trivialities (see, for example, Dana Milbank’s snarky and unfair coverage of the hearing as “an amateur hour—or an amateur five hours”), there was a good deal of serious discussion and more agreement than might have been expected on some important points. One point in particular stands out: every witness and member who spoke to the issue seemed to agree that there has been a serious erosion of congressional power in recent decades and that Congress has failed to act in self defense when faced with presidents who seek to aggrandize their power at the expense of the legislative branch.
Not surprisingly, this was most evident from the majority members of the Committee, who repeatedly expressed concern about the increasing power of the executive branch, and the majority’s star witness, Professor Jonathan Turley, who testified that the rise of an “uber-presidency” is causing our constitutional system to change in a “dangerous and destabilizing way.” Turley said the executive branch has “bled away” a lot of congressional authority and argued that the House must “take a stand” to re-establish some degree of constitutional balance.
But these concerns were not limited to the Republican side. For example, when Turley said that the Framers expected that the House would stand up for its institutional prerogatives, Representative Louise Slaughter, the Ranking Member, nodded in agreement. Although Slaughter indicated in no uncertain terms that she would not be supporting the resolution, she also said there were “genuine issues of executive overreach” by “modern presidents,” a category from which she did not exempt the incumbent.
The minority witnesses also acknowledged the problem. Simon Lazarus of the Constitutional Accountability Center recognized the relative decline of Congress with respect to the other two branches as a development that “definitely has occurred” and is “regrettable.” Professor Walter Dellinger, who like Lazarus was called by the minority in opposition to the resolution, also acknowledged that there has in fact been an erosion of congressional power in recent years. At Dellinger’s words, Slaughter and Representative Jim McGovern both nodded in vigorous agreement, with McGovern expostulating “yes, yes” or something to that effect.
There was also a good deal of agreement on the difficulty that the House would face in trying to establish standing to bring such a lawsuit. Although Professor Elizabeth Foley gamely made the case that the courts ought to recognize the House’s standing under the circumstances presented, no one (with the possible exception of Foley herself) appeared to think this was a likely outcome. Turley, for example, acknowledged that the President “has the advantage on standing.” Lazarus suggested that while there was some possibility the courts might recognize the House’s standing, everyone would agree it would be an “uphill climb.” Meanwhile, Slaughter and Dellinger had a field day citing statements by conservatives hostile to legislative standing in general and to this lawsuit in particular. Slaughter, for example, quoted Andrew McCarthy’s description of the lawsuit as “feckless” and his warning that the House’s theory of standing would lead to “vexatious congressional lawsuits.” The Republican members of the committee didn’t so much take issue with these views as argue that they have no other viable options to contain the expansion of executive power.
But is it true that there are no other viable options? To answer that question, we must drill down on the legal issue presented by the extension of the employer mandate. Which I will take up in my next post.
There are a number of reasons why the proposed lawsuit by the House against President Obama is likely to be futile (or worse). Andrew McCarthy does an admirable job of laying many of them out here and here. Today I will address only one issue, the question of the House’s standing, from what may be a unique perspective.
This post is not about whether the House “ought” to be found to have standing as a matter of legal theory. I have no strong views on how much of modern standing doctrine can properly be derived from the Constitution’s “case or controversy” language and how much is an ahistorical judicial invention. On these questions see Professor Ramsey here and Professor Epstein here.
Nor would I argue that the House’s standing is foreclosed by controlling Supreme Court precedent. The Court has left the door open to institutional lawsuits by the House or Senate under certain circumstances and I assume that it could, if it wished, open that door wide enough to allow the House’s suit here. As discussed below, the reasoning of Raines v. Byrd, 521 U.S. 811 (1997), cuts against the standing theory offered by David Rivkin and Professor Foley in support of the House’s suit, but that is not my primary point.
The main point of this post is to explain why, IMHO, the courts will not in fact recognize the House’s standing to bring suit “to compel the president to follow his oath of office and faithfully execute the laws of our country,” as the Speaker’s June 25 memo puts it. Whether this result is best explained by a coherent theory of standing, sound constitutional policy, or naked judicial self-interest, I leave to the reader to decide.
Not surprisingly, the D.C. Circuit has affirmed the district court’s dismissal of Common Cause’s challenge to the constitutionality of the filibuster. Like the court below, the appellate panel found the plaintiffs lacked standing to sue, but its rationale was somewhat different. The district court’s decision was rooted in the absence of a cognizable injury and the court’s lack of power to remedy the harm allegedly caused by the filibuster rules (namely Congress’s failure to enact two pieces of legislation, the Dream Act and the Disclose Act, that would have benefitted the plaintiffs). It also concluded that the suit was barred by the political question doctrine.
The D.C. Circuit, on the other hand, “focus[ed] on whom Common Cause chose to sue—or, more to the point, not to sue.” The Senate, of course, is responsible for enacting and enforcing its own rules, yet Common Cause did not name the Senate or any senator as a defendant. Instead, it sued the Vice President and three Senate officers.
This was a transparent ploy to circumvent the Speech or Debate Clause, which would certainly have required the dismissal of any suit against the Senate or particular senators. As the court points out, what defeated the Dream and Disclose Acts was “legislative action, activity typically considered at the heart of the Speech or Debate Clause.” There was, however, no need to decide whether the Clause barred suit against the Vice President and Senate officers because these were simply the wrong defendants.
The court was unimpressed by Common Cause’s reliance on Powell v. McCormack, 395 U.S. 486 (1969), in which a member of the House was able to challenge his expulsion by suing the Sergeant at Arms to recover back salary. As we have discussed before, the Sergeant at Arms was responsible for paying Powell’s salary and thus could be said to have caused this very specific injury to the plaintiff. But nothing in the Supreme Court’s decision suggests that congressional officers can be used generally as stand-ins whenever someone wants to challenge an allegedly illegal House or Senate action.
In contrast to the situation in Powell, the court notes “Common Cause does not identify anything the defendants did (or refrained from doing) to cause its alleged injuries.” The only remotely plausible link is the Vice President’s role as presiding officer of the Senate, but any ruling by the presiding officer is subject to appeal to the full chamber. Thus, even if the Vice President had been presiding at the time of the votes Common Cause complains of (which he was not), and even if he had ruled on a relevant issue (which he did not), it would still be the Senate, not the Vice President, that caused the alleged injury.
Accordingly, Common Cause’s failure to sue the Senate or any senator leaves it “Hoist with [its] own petar,” as the court puts it, quoting Hamlet (act 3, scene 4, if you were wondering).
To appeal or not to appeal, that is the question. Perhaps Common Cause’s quixotic quest (to mix metaphors) will yet have a third act. Or perhaps it will decide it is nobler in the mind to suffer the slings and arrows of outrageous fortune. Only time will tell.
Update: oops, I have been reminded that the Tenth Circuit in Schaffer v. Clinton, 240 F.3d 878, 885-86 (10th Cir. 2001), rejected the D.C. Circuit’s Boehner v. Anderson conclusion and held that a member of Congress lacked standing to complain of a pay increase that allegedly violated the Twenty-Seventh Amendment. Schaffer isn’t cited in DOJ’s motion to dismiss either.
Senator Ron Johnson (R-Wisc.) has brought a lawsuit against OPM in the U.S. District Court for the Eastern District of Wisconsin in which the senator, along with one of his aides, challenges OPM’s regulations related to congressional health insurance options available under the Affordable Care Act. Specifically, the plaintiffs argue that OPM lacked the authority to grant employer subsidies for congressional health insurance purchased on the exchanges under Section 1312 (d)(3)(D) of the ACA. They also maintain that OPM improperly shifted to Members of Congress the burden of determining which legislative employees qualify as employees of “the official office of a Member of Congress” within the meaning of Section 1312 (d)(3)(D).
Andrew McCarthy has called this lawsuit “frivolous,” saying “it is no more constitutionally proper or practical for a legislator to sue the president over a public policy dispute than for the president to violate valid laws.” But while the suit may be “frivolous” in the sense that it is not a worthwhile use of the senator’s or the court’s time, it is not legally defective simply because the senator’s motivation is to win a political or public policy dispute. If, for example, Marbury was motivated by the desire to score political points against the Jefferson administration rather than by a genuine ambition to become a justice of the peace (which may have been the case, for all I know), this would not have been grounds to reject his case. At least I don’t think so.
The legal question is simply whether Johnson and/or his aide have suffered a personal injury that can be redressed in court. This is not a case, like Raines v. Byrd, 521 U.S. 811 (1997), where individual members of Congress are attempting to vindicate an institutional injury suffered by the legislative body as a whole.
The Justice Department, representing OPM, argues that the plaintiffs lack standing because they are not claiming any personal injury. For example, they “are not contending that the challenged OPM regulations have any adverse effect on their own health coverage.” DOJ Motion to Dismiss at 7 (emphasis in original). Instead, their “suit seeks to narrow the health-coverage options and benefits made available to themselves and other Members of Congress and congressional employees.” Id. (emphasis in original). How, DOJ in essence asks, can Senator Johnson have been injured by receiving a financial benefit such as an employer subsidy?
This is a fair question, but I can’t help noticing that the Justice Department failed to cite the only case (to my knowledge) to answer this question in a virtually identical context. In Boehner v. Anderson, 30 F.3d 156 (D.C. Cir. 1994), a group of members and congressional candidates, led by the future Speaker of the House, challenged certain congressional pay increases as contrary to the Twenty-Seventh Amendment. As in the Johnson lawsuit, the defendants argued that Boehner lacked standing to sue because his complaint was really a generalized about the conduct of government. Besides, the Secretary of the Senate (one of the defendants) added sensibly, “an increase in pay is not an injury.”
Boehner, however, argued that in his case it was an injury because his constituents would think less of him for receiving a financial benefit to which he was not legally entitled. This argument, essentially identical to Johnson’s, was accepted by the D.C. Circuit, which stated: “We do not think it the office of a court to insist that getting additional monetary compensation is a good when the recipient, a congressman, says that in his political position it is a bad.”
We will see if the federal court in Wisconsin follows this line of reasoning. If it does not, Senator Johnson still may be able to prevail on standing with regard to the “official office” designation issue. Here Johnson contends that OPM has unlawfully punted the responsibility for determining who works for an “official office” within the statutory meaning. This places a burden on the individual member to make this determination, without any guidance from OPM, and results in identically situated staffers being treated differently.
DOJ’s arguments against standing on this issue strike me as less than impressive. The primary argument is that the necessity of determining which employees work for an “official office” results from the ACA itself, not from OPM. That’s true, but it is OPM that has taken a legal determination that should be made by the agency and made it into an arbitrary choice to be made by members.
DOJ also argues that Johnson does not really have to undertake the burden of making this decision because he has the option of delegating it to the Senate’s administrative office. But that’s just another way of making the decision. Johnson knows what determination the Senate administrative office will make. If that is the legally correct determination, then OPM should have made that determination in the first place. Instead, OPM is essentially giving members the option to decide whether or not they want to follow the law. Since following the law will impose a cost on a member (particularly in comparison to another member who may decide not to follow it), that does seem to place an individual burden on each member.
Probably the most important part of the Bipartisan Legal Advisory Group’s jurisdictional brief in U.S. v. Windsor (the Supreme Court case on the constitutionality of the Defense of Marriage Act) is the first footnote (page ii), which states:
The Bipartisan Legal Advisory Group articulates the institutional position of the House in all litigation matters in which it appears. The Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. While the Democratic Leader and Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases, they support the Group’s Article III standing.
The fact that the House Democratic Leadership supports BLAG’s standing to defend the constitutionality of DOMA tells the Supreme Court, in no uncertain terms, how vital the House considers its right to defend the constitutionality of statutes where the executive branch refuses to do so. If the Court is looking for an “easy out” from this case, this makes it harder. Although it is arguable that the House Democrats are only supporting BLAG’s “Article III standing,” as opposed to prudential standing requirements that the Court might decide to apply, it is even more noteworthy that they are supporting BLAG’s standing, not just the House’s. The House Democratic Leadership evidently agrees that BLAG was properly authorized to represent the House in this litigation, which is a key jurisdictional question.
Full disclosure: I am representing 10 Senators in this case on an amicus brief in support of DOMA’s constitutionality.
Common Cause has filed its opposition to the Senate’s motion to dismiss its lawsuit seeking to have the filibuster declared unconstitutional. Its brief clearly demonstrates that there is no persuasive answer, and in some cases no answer at all, to the problems identified in my earlier post on this subject. A few observations should suffice.
The nature of the alleged injury. Common Cause claims that the plaintiffs were injured by the use of the filibuster to block specific bills, namely the DISCLOSE and DREAM Acts. Yet it says that it is irrelevant whether these bills would have become law in the absence of the filibuster. Brief at 3 (“the plaintiffs need not show that both bills would have been enacted but for the filibuster to have standing.”). Merely showing that a bill benefiting them might have passed but for the filibuster demonstrates a procedural injury, it argues, and there is no need to show an actual substantive injury.
By so lowering the bar, Common Cause would create a class of standing considerably broader than taxpayer standing (which the courts have rejected). Surely every person in the United States, if not the world, can claim that they would have benefitted from a law that might have passed but for the filibuster.
At the same time, Common Cause continues to rely on the claim that the two laws in question would have been enacted but for the filibuster. Brief at 42 (DREAM Act “would have been enacted into law, but for the use of Rule XXII”); 43 (“The DREAM and DISCLOSE Acts would have been enacted but for the defendants’ use of Rule XXII.”). It thus seeks to have it both ways—to claim a substantive injury for purposes of distinguishing the plaintiffs from the world at large, while relieving itself of the burden of proving such an injury.
When Common Cause filed this lawsuit challenging the constitutionality of the filibuster, the legal establishment scoffed. Critics called it “ridiculous,” “specious,” and “frivolous.” They said the courts would toss the case on jurisdictional grounds without reaching the merits. They said a rag tag bunch of public interest lawyers, Democratic House Members and illegal aliens stood no chance against the world’s greatest deliberative body. (Ok, I might have made up that last part).
But as much as we like a good David versus Goliath story, I would bet on Goliath here. Apart from the merits of any constitutional objection to the filibuster (or lack thereof, as I have argued here and here; see also Ed Whelan’s comments), the Common Cause lawsuit suffers from three fundamental defects: (1) the lack of plaintiffs with legally cognizable injuries, (2) the absence of defendants to whom the alleged injuries could be attributed, and (3) the inability of a federal court to redress the alleged injuries even if proper defendants were before it.
In a federal complaint filed today, a bipartisan group of Congressmen (led by Representative Dennis Kucinich) seeks “injunctive and declaratory relief to protect the Plaintiffs and the country from a stated policy of Defendant Barack Obama, President of the United States, whereby a president may unilaterally go to war in Libya and other countries without the declaration of war from Congress required by Article I, Section 8, Clause II of the U.S. Constitution.” The plaintiffs allege that the military action in Libya violates both the Constitution and the War Powers Resolution. They also contend that the administration has illegally funded the war by using monies appropriated for other purposes in violation of the Anti-Deficiency Act.
Leaving aside the merits, it is hard to see how the plaintiffs can hope to surmount the judicial barriers erected to keep such claims from being heard in court. In Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), the court held that a group of Members of Congress (including Kucinich) lacked standing to bring virtually identical constitutional and statutory claims in connection with President Clinton’s military campaign in Yugoslavia. Relying on Raines v. Byrd, 521 U.S. 811 (1997), the court held that the plaintiffs could not seek judicial relief because there were legislative remedies available and their injury was caused by Congress’s failure to adopt those remedies.
In paragraph 165 of today’s complaint, the plaintiffs “acknowledge that standing of members has been curtailed in prior judicial opinions, but they believe that these decisions allow for an exception for these claims and that members of Congress must have the ability to seek judicial review in this context.”
They do not explain what “exception” they are relying on, but the language in Campbell is directly applicable to the current situation:
In this case, Congress certainly could have passed a law forbidding the use of U.S. forces in the Yugoslav campaign; indeed, there was a measure–albeit only a concurrent resolution–introduced to require the President to withdraw U.S. troops. Unfortunately, however, for those congressmen who, like appellants, desired an end to U.S. involvement in Yugoslavia, this measure was defeated by a 139 to 290 vote. Of course, Congress always retains appropriations authority and could have cut off funds for the American role in the conflict. Again there was an effort to do so but it failed; appropriations were authorized. And there always remains the possibility of impeachment should a President act in disregard of Congress’ authority on these matters.
Appellants’ constitutional claim stands on no firmer footing. Appellants argue that the War Powers Clause of the Constitution proscribes a President from using military force except as is necessary to repel a sudden attack. But they also argue that the WPR “implements” or channels congressional authority under the Constitution. It may well be then that since we have determined that appellants lack standing to enforce the WPR there is nothing left of their constitutional claim. Assuming, however, that appellants’ constitutional claim should be considered separately, the same logic dictates they do not have standing to bring such a challenge. That is to say Congress has a broad range of legislative authority it can use to stop a President’s war making, see generally John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167 (1996), and therefore under Raines congressmen may not challenge the President’s war-making powers in federal court.
As in Campbell, the plaintiffs challenging the Libyan operation have legislative remedies available—Congress could pass a resolution requiring withdrawal, cut off appropriations or even begin impeachment proceedings. As of yet, however, the House alone has passed a resolution forbidding ground troops in Libya, but not otherwise objecting to the operation. I just don’t see how the plaintiffs can distinguish their case from Campbell.
Neither does Jack Goldsmith.
When Attorney General Holder announced that the Department of Justice (DOJ) would no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in cases where it was being challenged, he committed to “providing Congress a full and fair opportunity to participate in the litigation in those cases.” In response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives is seeking to intervene in a number of such cases, including Windsor v. United States, pending in the Southern District of New York.
DOJ does not object to BLAG’s intervention in Windsor, but it contends that the House’s interest in DOMA’s constitutionality is nothing more than a “generalized grievance” that is inadequate to give it standing. Accordingly, it proposes that BLAG be permitted to intervene only “to present arguments in support of the constitutionality of Section 3 of DOMA, consistent with [DOJ’s] role in this case as counsel for the United States.”
Under DOJ’s theory, it would retain exclusive control of the defense of the case, including control over procedural issues such as filing motions, making objections and appealing adverse decisions. DOJ promises that it will “file appropriate motions, purely as a procedural matter, to ensure that this Court can consider arguments on both sides of the constitutional issue and that the Court has jurisdiction to enter judgment on the basis of those arguments.” Notably, however, DOJ does not promise that it will necessarily appeal a judgment against the constitutionality of DOMA.
BLAG objects to DOJ’s position. It argues that DOJ is inappropriately attempting to relegate it to the status of a glorified amicus and “asserting a right to act as a gatekeeper for the House’s efforts to defend a validly enacted statute that the Department itself refuses to defend.” Accepting DOJ’s position would give it the ability to hamstring the House’s defense of DOMA, or any federal statute, thus effectively giving it “an extra-constitutional post-enactment veto over federal statutes to which it objects.”
Moreover, BLAG argues that DOJ’s position is inconsistent with INS v. Chadha, 462 U.S. 919, 940 (1983) , where the Court stated that “Congress is the proper party to defend the validity of a statute when an agency of the government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.” Chadha relied on this proposition to support its holding that there was a justiciable case or controversy, a conclusion that would make no sense unless Congress was considered to be a true party with independent standing.
BLAG’s reading of Chadha seems to be the more persuasive one. Therefore, BLAG should have standing so long as one makes the assumption that it is the same entity, for purposes of the standing analysis, as the House itself. This assumption is of yet unexamined, but may not remain so.