he is said to dwell in the castle of Kronborg, his beard grown down to the floor, and to sleep there until some date when Denmark is in mortal danger, at which time he will rise up and deliver the nation
Sunday, February 9, 2014
Why not even Congress can sue the administration over unconstitutional executive actions
What happens if a president refuses to “take care that the laws be
faithfully executed” as required by Article II of the Constitution? The
Framers assumed that neither Congress nor the courts would tolerate such
usurpation. In Federalist No. 48, James Madison said power was
“so divided and balanced among several bodies … that no one could
transcend their legal limits, without being effectually checked and
restrained by the others.” Madison’s confidence assumes a wayward
president could be reversed by the courts, reigned in by Congress or —
as a last resort — impeached. But what if none of these checks and
balances works? Americans may soon find out.
First, courts have limited ability to check a president’s failure to
execute. The primary obstacle is “standing,” a doctrine that requires a
plaintiff to have a concrete, personal injury in order to sue. Citizens
can’t file generic lawsuits to enforce the Constitution; they must prove
that the government has harmed them in a personal, palpable way.
When a president delays or exempts people from a law — so-called
benevolent suspensions — who has standing to sue him? Generally, no one.
Benevolent suspensions of law don’t, by definition, create a
sufficiently concrete injury for standing. That’s why, when President
Obama delayed various provisions of Obamacare — the employer mandate,
the annual out-of-pocket caps, the prohibition on the sale of
“substandard” policies — his actions cannot be challenged in court.
Similarly, when the president decided not to deport certain young
people, not to prosecute most marijuana users, and rewrote the work
requirement of welfare reform, courts cannot rule on these acts’
constitutionality because no individual has suffered the personal harm
required for standing. Sure, the Constitution and its separation of
powers are tremendously harmed. But the Supreme Court has made clear
such generalized societal harms won’t suffice.
Congress probably can’t sue the president, either. The Supreme Court
has severely restricted so-called “congressional standing,” creating a
presumption against allowing members of Congress to sue the president
merely because he fails to faithfully execute its laws.