Witnesses Testifying Before House Committee on Sue-the-President Legislation Overlook Key Argument

WASHINGTON - July 16, 2014 - PRLog -- WASHINGTON, D.C. (July 16, 2014): Witnesses testifying before the House Rules Committee this morning, on a proposal to authorize the House of Representatives to sue the President, seemingly overlook a key fact in the debate over legal "standing," says a law professor who has been able to obtain standing in many situations in which many other scholars said it was impossible.

        At least two witnesses testified that the House would have standing to sue only if no other entity would have standing to bring the same issue before the courts as a normal "case or controversy."  But, says public interest law professor John Banzhaf, such entities probably do exist, and their existence therefore would seriously weaken the arguments for the law suit that the only way to get a judicial ruling on this constitutional issue is to permit suits by one branch of Congress.

        The Republicans reportedly plan to argue that President Obama violated the Constitution when he "unilaterally" delayed the so-called "employer mandate" - a requirement under the ACA that businesses with more than 50 workers provide health coverage for their workers.

        "Surely there is at least one worker employed by a company which had planned to provide the insurance mandated by the ACA, but who will not enjoy the coverage by that date specifically because the company changed its mind when the administration removed its only incentive (the penalties) to provide it by that date," says Banzhaf.  In such a case, the worker would clearly suffer "an injury in fact" "directly traceable" to the legal action being challenged, and would obviously be within the class of person sought to be protected by the act, argues Banzhaf, reciting the ordinarily requirements for standing repeatedly cited by the U.S. Supreme Court.

        In addition, there probably are companies, which committed to providing the coverage mandated by the ACA to their employees by the specified date, who will be at a competitive disadvantage when its direct competitors declined to provide such coverage once the mandate’s  penalties are delayed.  Being forced to pay more for its workers' insurance than its competitors causes it the economic injury which courts have always recognized as the key to standing, says Banzhaf.

        And surely there are other entities which can likewise show some injury in fact from the President's decision, says Banzhaf, who in several remarkable cases was able to get standing despite existing legal requirements.  That's how he and his law students were able to obtain standing to protest governmental actions which hurt the environment - and everyone equally - in a famous Supreme Court case, even in the face of a preceding environmental case in which the Supreme Court had denied standing to the Sierra Club.

        Another court ruled that Professor Banzhaf had standing to force the U.S. Attorney General to seek the appointment of a Special Prosecutor, even though the professor obviously suffered no unique injury.  Law students under his direction also put together a law suit which was successful in recovering  money former president Spiro T. Agnew accepted in bribes, even though the injury was to the State of Maryland which had refused to join in the suit.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf