The case for suing the US President

Wall Street Journal

'So sue me' is President Obama's message to Congress. And on Wednesday the House of Representatives took up his taunt, authorizing a lawsuit to challenge the president's failure to faithfully execute provisions of the Affordable Care Act as passed by Congress. The House lawsuit is no 'stunt', as Obama has characterized it. The lawsuit is necessary to protect the Constitution's separation of powers, a core means of protecting individual liberty. Without a judicial check on unbounded executive power to suspend the law, this president and all who follow him will have a powerful new weapon to destroy political accountability and democracy itself.

Article I of the Constitution vests all legislative power in Congress. Article II imposes a duty on the president to "take care that the laws be faithfully executed". When a law is unambiguous, the president cannot rewrite it to suit his own preferences. "The power of executing the laws," as the Supreme Court emphasized in June in Utility Air Regulatory Group v. EPA, "does not include a power to revise clear statutory terms that turn out not to work in practice." If a law has defects, fixing them is Congress's business.

These barriers between the branches are not formalities; they were designed to prevent the accumulation of excessive power in one branch. As the Supreme Court explained in New York v. United States (1992), the "Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day".

The barriers also reflect the Framers' belief that some powers are better suited for a particular branch of government because of its institutional characteristics.

Congress has the exclusive authority to make law because lawmaking requires pluralism, debate and compromise, the essence of representative government. If Congress cannot achieve consensus, that doesn't mean Congress is 'broken'. A divided Congress reflects a divided people. Until there is a compromise acceptable to the majority, the status quo is the only correct path. An impasse emphatically does not warrant a president's bypassing Congress with a pen and phone, as Obama claimed the power to do early this year.

The separation of powers also guarantees political accountability. When Congress makes a law and the president executes it as written, citizens will know whom to reward or punish at the next election.

A president who unilaterally rewrites a bad or unworkable law, however, prevents the American people from knowing whether Congress should be praised or condemned for passing it. Such unconstitutional actions can be used to avert electoral pain for the president and his allies.

If Obama can get away with this, his successors will be tempted to follow suit. A Republican president, for example, might unilaterally get the Internal Revenue Service to waive collection of the capital-gains tax. Congress will be bypassed, rendering it increasingly irrelevant, and disenfranchising the American people.

Over time, the Supreme Court has come to recognize that preserving the constitutional separation of powers between the branches of government at the federal level, and between the states and the federal government, is among the judiciary's highest duties.

In Garcia v. San Antonio Metropolitan Transit Authority (1985), the court was asked whether the wage and hour provisions of federal labor law could be imposed on states as employers. The justices refused to examine the substance of the states' claim, declaring that the so-called vertical separation of powers (federalism) was "more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power".

Because members of Congress are elected on a state-by-state basis, the court thought the national political process itself was the more proper way to protect states' rights against federal encroachment. It was a mistake the court would quickly regret.

Seven years later, in New York v. United States (1992), the Supreme Court did an about-face, acknowledging that the political-remedies process alone could not safeguard the separation of powers, and invalidated a federal law that forced states to "take title" to low-level radioactive waste. The court abandoned the 'hands off' position of Garcia because if it did not do so, the federal government could coerce states to do the federal government's bidding -- a power that could have severely undermined the federalist structure of the Constitution and hence political accountability.

Litigation in federal court is an indispensable way to protect all branches of government against encroachment on their authority. States have successfully sued to stop federal intrusions into their constitutionally reserved powers. State legislators have also successfully sued to protect their institutional authority when state executives nullified their legislative power.

The executive branch is no different. President Obama has repeatedly resorted to litigation to vindicate the executive branch's constitutional prerogatives. His administration has routinely sued states for violating federal laws, in cases such as Arizona v. United States (2012), involving the constitutionality of a state law dealing with illegal immigration.

And the Supreme Court has declared unconstitutional portions of congressional statutes that encroached on the federal judiciary's power. In Northern Pipeline Construction Company v. Marathon Pipe Line Company (1982), the court invalidated a transfer of judicial power to 'judges' in bankruptcy cases who were not part of the regular federal judiciary and were exercising powers conferred by Congress, rather than by the Constitution.

Congress is not an institutional orphan. Like the president and the states, it can rightfully expect courts to enforce its institutional authority. Any other result would establish an anomalous loophole preventing Congress (and Congress alone) from vindicating its constitutional prerogatives. Courts would not countenance such a lapse in the constitutional architecture, with the potential to inflict enormous damage to the separation of powers, political accountability and individual liberty.

The problem will be cured once the judiciary declares unconstitutional the president's unilateral suspension of Affordable Care Act provisions and vacates the executive branch measures through which these suspensions were effected.

Mr. Rivkin, a partner at the firm Baker Hostetler LLP, served in the Justice Department and the White House Counsel's Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law.

This article was originally published at the Wall Street Journal. Reproduced with permission.