Can Congress (or some members) sue the President to force him to enforce federal laws? The Wall Street Journal says yes: Standing to Sue Obama. From the discussion:
The Washington lawyer David Rivkin and Florida International University law professor Elizabeth Foley suggest a broader approach that doesn't require legislators to act as individuals. They're trying to persuade House leaders to mount an institutional challenge to the White House rewrite of ObamaCare's employer mandate. Here the President is defying the plain language of laws and undermining legislative power. The courts ought to extend standing to the House as an institution to vindicate this injury. Short of impeachment, there is no other way for Congress to defend its constitutional prerogatives and the rule of law.
Earlier this year the Tenth Circuit used this theory to grant legislative standing to a group of liberal Colorado representatives to challenge that state's taxpayer bill of rights. [Ed.: This is the Kerr v. Hickenlooper case I've critiqued several times here, though I'm not sure it says what the Journal editors think it says.] Last year the Supreme Court also granted standing to Congress's Bipartisan Legal Advisory Group to defend the Defense of Marriage Act. [Ed.: yes, I didn't think much of that decision either, though].
I saw Darrell Issa speak in San Diego recently, and he was advancing this idea as a strategy for the House. I'm skeptical that the current standing doctrine allows it (and I'm even more skeptical that conservatives would embrace it under a Republican President: just as liberals need to be careful about what precedents they establish for Republican precedents to ignore the law, conservatives should be careful about what precedents they establish for the courts to supervise the executive branch). But I'm also skeptical of modern standing law as a matter of original understanding.
(Via Elizabeth Price Foley, guest-blogging at Instapundit, who also provides links to her earlier testimony on the issue).
Posted at 11:59 PM