Can Obama's executive end runs around Congress be stopped?

The post-Raines presumption against congressional standing is appropriate as a general matter. It is not desirable to allow a single member of Congress, or an ad hoc group of members, to challenge any presidential action with which they politically disagree. Such lawsuits would be abstract, inefficient and potentially destructive to the president’s legitimate authority.

But Raines is best understood as establishing only a presumption against congressional standing that can be rebutted in the right circumstances. Indeed, there are powerful reasons why members of Congress should be permitted to sue the president when the situation warrants.

First, standing should not bar enforcement of the separation of powers when there are no other plaintiffs capable of enforcing this critical constitutional principle. In Raines itself, for example, the court knew that other plaintiffs, who possessed standing, were waiting in the wings to sue the president. Indeed, in the subsequent case of Clinton v. City of New York (1998), standing was established by several businesses, individuals and a city that had lost tax benefits, and the court then declared the line-item veto unconstitutional.