How five Colorado Democrats may have paved the way for Congress to sue the administration

Elizabeth Price Foley and David Rivkin Law Professor; Senior Advisor, FDD
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Last week, the U.S. Tenth Circuit decided a case that should reverberate on Capitol Hill. In Kerr v. Hickenlooper, five Colorado legislators sought “standing” to challenge a state constitutional amendment. The three-judge panel — consisting of Carter and Clinton appointees — ruled in favor of the legislators’ standing. This decision should embolden members of Congress who correctly believe that President Obama has encroached upon Congress’ constitutional authority. Indeed, Congress should do no less in defending its authority than the five Colorado state legislators.

Many members of Congress believe that numerous presidential actions — delaying various provisions of the Affordable Care Act, granting amnesty for DREAMers, eviscerating the work requirement of welfare reform — violate the President’s constitutional duty to “take care that the laws be faithfully executed.” Several pending bills would authorize congressional lawsuits to challenge the constitutionality of these actions. The House Judiciary Committee held a hearing in late February and favorably reported a measure, the ENFORCE Act, that passed the House on Wednesday with the support of only five Democrats. Whether these lawsuits can move forward hinges on legislative standing — the very issue favorably resolved by Kerr.

Legislative standing is important for both the political right and left. The Kerr plaintiffs were Democrats, who opposed a 1992 state constitutional amendment called “TABOR” (Taxpayer Bill of Rights), that constrains year-to-year spending increases and prohibits any tax increases without subsequent voter approval. They were unhappy that the law handcuffed the state’s ability to raise taxes to increase spending for programs such as education. They also believed TABOR violated the U.S. Constitution’s guarantee to states of a “republican form of government” by depriving the Colorado legislature of is power over taxing and appropriations.

The Kerr court held that the institutional injury alleged — depriving the legislature of its ability to tax and spend — constituted an “injury-in-fact,” thereby satisfying the key constitutional prerequisite of standing. Specifically, the court asserted that TABOR rendered legislative votes on tax issues “completely ineffective” because a “vote in favor of a tax increase is not a change in the law” without subsequent voter approval. Legislative votes on tax increases were thus merely “advisory” and the amendment effectively “disempower[ed]” the Colorado legislature.

Kerr follows Supreme Court precedent on legislative standing. In Coleman v. Miller (1939), the Court allowed a majority of Kansas state senators to sue their governor to challenge the legitimacy of their state’s ratification of a federal child labor amendment. The Supreme Court in a subsequent case, Raines v. Byrd (1997), made it clear that Coleman stands “for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.”

The Tenth Circuit observed that, if “nullification” of a single legislative vote can give rise to standing, the governor’s enforcement of a law that deprives the legislature of its power over an entire category of votes must likewise confer standing: “[I]t would be a bizarre result if the nullification of a single vote [in Coleman] supported legislative standing, but the nullification of a legislator’s authority to cast a large number of votes [on taxing matters] did not.”

A congressional lawsuit for President Obama’s failure to faithfully execute the laws would be grounded upon an analogous claim of nullification. Presidential unilateral amendments of Obamacare disempower Congress in exactly the same way as TABOR injured the Colorado legislature. Executive failure to faithfully execute deprives Congress of its constitutional prerogative to make laws. If presidents can unilaterally “amend” laws, they can nullify not only discrete votes, but vitiate legislative power as such.

The Tenth Circuit also found it significant that the legislature’s Committee on Legal Services had filed an amicus brief supporting legislative standing.  While the Colorado legislature had not voted to authorize the lawsuit against Governor Hickenlooper, the amicus brief signaled to the Tenth Circuit that the legislature believed it had suffered an institutional injury.

An explicit institutional authorization, by either the House or the Senate, of a lawsuit against President Obama would place Congress in an even stronger position than the Colorado legislator-plaintiffs. Kerr illustrates that standing exists when the executive acts in a manner that “nullifies” legislative power and the legislature itself believes its power has been usurped. Under such circumstances, it is critically important that the judiciary adjudicate the dispute between the political branches to preserve the Constitution’s separation of powers.

Without judicial resolution of such disputes, the Constitution’s separation of powers is but a paper tiger. Upholding separation of powers is important regardless of the political ideology of the legislators bringing the lawsuit. The availability of judicial enforcement of the separation of powers is something upon which both Democrats and Republicans should be able to agree.