Morning Must-Read: Nicholas Bagley: John Boehner Sues Barack Obama

Nicholas Bagley: Can the House sue over the employer mandate?: “The legality of delaying the employer mandate is questionable….

…[But] the lawsuit isn’t going anywhere…. The House of Representatives as an institution hasn’t suffered the sort of concrete, particularized injury that the courts are constitutionally empowered to review…. The only arguments I’ve seen in favor of standing–they’re sketched out in a memo from Boehner–don’t withstand even cursory scrutiny. The primary claim seems to be that ‘[t]here is no one else….’ But so what? The Supreme Court has been unusually emphatic in holding that ‘the assumption that if [the challengers] have no standing to sue, that no one would have standing to sue, is not a reason to find standing’. Not every fight can or should see the inside of a courtroom…. Congress could… enact a statute withdrawing the President’s claimed enforcement discretion…. Congress isn’t willing to use its power, not that it lacks the power. Finally, the memo suggests that ‘explicit House authorization for the lawsuit’ may confer standing on Congress. But why? In Chadha v. INS, the Supreme Court flatly dismissed the idea that the House or Senate, acting alone, could constitutionally wield legislative power. Boehner’s resolution has as much legal effect as an open letter signed by members of his caucus…. This lawsuit looks like a waste of time and taxpayer money.”