June 16, 2014

THE WALL STREET JOURNAL endorses Elizabeth Price Foley’s standing argument:

Mr. Obama’s practice of unilaterally waiving his duty to faithfully execute statutes has been abetted by a presumed lack of legal “standing” to contest his suspension. To the extent individuals have not suffered concrete injuries that the courts traditionally redress, he feels he can act without consequence to create whole-cloth regulatory regimes. This makes the inherent Article I powers of Congress irrelevant, with perhaps permanent damage to the separation of powers and political accountability. If Mr. Obama gets away with it, the next President probably will too.

But Congress may yet have a way to challenge this usurpation in court. The Washington constitutional litigator David Rivkin and Florida International University law professor Elizabeth Price Foley have developed a legal theory that would allow for judicial review to resolve this dispute between the political branches on the merits. Members of Congress as individuals cannot sue as individuals over passing political disputes. But when the President is usurping core legislative powers, Congress as an institution can sue to vindicate this constitutional injury.

Short of impeachment, there is no other way for Congress to defend its rights, and the Rivkin-Foley case is narrow and limited—and should survive judicial scrutiny. The idea has secured the interest of the GOP leadership, which may soon authorize a House-led lawsuit.

Stay tuned.