One of the most convincing conservative arguments for why John Boehner's lawsuit is a huge waste of time and money happens to have been written by the person House Republicans have tapped to argue their case. Elizabeth Price Foley, a Florida International University law professor, will argue for the draft resolution allowing Boehner to sue President Obama for failing to enforce Obamacare's employer mandate during a hearing on Wednesday. But as The New York Times' Jonathan Weisman pointed out, Foley already argued convincingly for The Daily Caller that the lawsuit has no legal standing. In other words, you have to prove that the person you're suing personally injured you — Congress can't prove that.
As Foley wrote for The Daily Caller back in February:
When a president delays or exempts people from a law — so-called benevolent suspensions — who has standing to sue him? Generally, no one. ... 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.
The Supreme Court has also restricted the ability of Congress to sue, she argued, "creating a presumption against allowing members of Congress to sue the president merely because he fails to faithfully execute its laws."
But not today. In her prepared statement, Foley argues that since the House Republican's draft resolution limits the lawsuit to Obamacare, it "provides a conservative, targeted means for obtaining peaceful judicial resolution of the dispute between Congress and the president" over whether Obama is following the Constitution.
Foley's shift comes after months of brainstorming on how Congress can get around the legal standing issue. In January, she and David Rinkin, a former employee of the Justice Department under Bush, argued in Politico that the court shouldn't dismiss the case because "if congressional standing is denied in such cases, there will be no other way to check such presidential usurpation short of impeachment." According to The National Review, that led to an invitation to appear at a hearing before the House Judiciary Committee. Rinkin and Foley then crafted the argument that Congress has standing to sue because the president has nullified its power. As Vox explained last week, they have three "new and untested arguments" for why the court should take up the case:
- The president's actions don't harm a specific person, but still seem illegal, so the legislature should still be able to sue
- If the House votes on the lawsuit it should be allowed
- There's no alternative — the employer mandate delay isn't an impeachable offense, but the court needs to make sure it's enforced.
Whether the Supreme Court will see suddenly see standing instead of a political stunt is the next question.