No matter how blatantly illegal this appears, it isn’t clear who could sue. Businesses, now relieved of the mandate, would certainly have difficulty showing in court that they were harmed by the fact that the Obama administration is no longer fining them. So as a result, Obama has been hiding behind the standing complications to boldly flout Congress.
That’s where Boehner enters. According to a legal theory developed by Baker Hostetler lawyer David Rivkin and Florida International University law professor Elizabeth Price Foley, “courts should permit congressional standing as a last resort to enforce the basic constitutional architecture.”
In other words, though Boehner couldn’t sue as an individual, if the theory holds up in court, it would mean that he could sue on behalf of the House of Representatives, because its constitutional role has been usurped by Obama’s lawlessness.
Even if such a lawsuit weren’t decided until late into Obama’s presidency, it would send an important signal about the limits of presidential power. And with the Noel Canning decision, the Supreme Court has signaled a willingness to push back.
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