Thursday, May 12, 2016

Yawn. Current Legislators Cannot Sue Whenever They Don't Like The Way The Executive Branch Enforces A Law Passed By A PRIOR Congress

Okay -- in the land of "Condor predicts" tonight -- I will confidently predict that when the SCOTUS gets this House of Representatives v. Burwell DC District Court decision, it will simply reverse without an opinion, or strike it, with an opinion and order holding that (no surprise) Congress cannot (constitutionally) grant itself standing to sue the Executive Branch, simply because the now-sitting House doesn't like the way a prior Congressional enactment is being implemented, by the Executive Branch.

The obvious -- and Constitutional -- answer is that the present Congress must repeal or amend the prior law, not sue to overturn it. The House simply has no standing.

In fact, House Republicans acknowledged that without a specific bill they proposed in 2014, they would have no power to sue, here. And that bill itself failed to pass the Senate -- and so it never became law. Yet, here the House sits today, suing to claim, on putative authority of a later law that did pass, that the prior law's funding provisions weren't specific enough. That later law is itself an unconstitutional abuse of separations of powers doctrines, but no one has bothered to bring a challenge -- because it all seems so silly -- since the SCOTUS will strike the very suit the House now attempts as unconstitutional, as well.

I am unsure whether the SCOTUS will take the trial court's opinion directly, or let it work its way up the chain from the trial court, here. But do rest assured -- without a Republican President, and a NEW law, passed by a subsequent Congress, this whole thing is nothing but political theater. [And I am on record that Mr. Trump will not be our 45th President.] This is all why (in part) the District Court stayed its ruling -- until all appeals are exhausted. Here is the sensible, sane bedrock law on which I base these assertions -- from a case the SCOTUS decided, called Raines v. Byrd 521 US 811 (1997). Here is a bit of the HHS memo of law quoting it, from the current case papers:

. . . .The cost sharing reduction payments are being made as part of a mandatory payment program that Congress has fully appropriated. See 42 U.S.C. § 18082.

In Raines, several Members of Congress challenged the constitutionality of the Line Item Veto Act of 1996, asserting that the statute had injured them by infringing on their power as legislators. 521 U.S. at 816. Although the Members had brought suit pursuant to a provision of the statute that authorized such a filing, the Supreme Court held that the plaintiffs lacked Article III standing. It noted that their claim asserted "a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally." Id. at 821. Because the plaintiffs’ "claim of standing [was] based on a loss of political power, not loss of any private right," their asserted injury was not "concrete" for the purposes of Article III standing. . . .

"[T]he authorities appear to hold uniformly that an official’s mere disobedience or flawed execution of a law for which a legislator voted. . . is not an injury in fact for standing purposes. . . . The principal reason for this is that once a bill has become law, a legislator’s interest in seeing that the law is followed is no different from a private citizen’s general interest in proper government. . . ."

Sleep well, now -- and know that this nonsense will not end Obamacare. Not a chance. Smile. . . .

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