By Jonathan Bernstein
The story on House Speaker John Boehner's lawsuit against President Barack Obama is pretty simple: regardless of whether the administration overstepped, what’s at stake is whether the courts are being empowered at the expense of the elected branches of government.
For starters, there’s zero evidence that Obama has been unusual in his use of executive powers. If he’s overdone it, then all the recent presidents have done so, too. The idea that he’s some sort of tyrant who acts differently than other modern presidents is nonsense.In fact, It’s perfectly normal for presidents and executive branch departments and agencies to make broad interpretations of law that look a lot like legislating. It’s how the system works, and pretty much how it always worked. Thus Richard Neustadt’s famous claim that the system isn’t “separation of powers,” but separated institutions sharing powers.
Nonetheless, there are rules constraining how laws may be interpreted, and it is possible that in specific instances, the administration may have acted beyond what the law allows.
Indeed, experts have made the case that this kind of overreach occurred with the delayed implementation of the employer mandate in the Affordable Care Act (which, apparently, is going to be central to the House Republicans' lawsuit), though other experts disagree.
In any case, it would be unprecedented, and in fact would constitute a significant change to the constitutional system, if the courts allowed Congress to sue the president over the ACA delay.
The technical issue is “standing.” For the courts to consider a lawsuit, the person or group bringing the suit has to show they were harmed in some direct way. So, for example, in the recent recess appointment case, Noel Canning Corp. was able to show that it had directly been harmed by an action taken by members of the National Labor Relations Board who had been recess-appointed. Generally, the courts have ruled (Vox has a good explainer on this) that Congress isn’t eligible to sue the president just because it doesn't like what he’s done....