The editors of the Wall Street Journal have come out in favor of the House’s suit against President Obama:
Liberals claim that Mr. Obama’s pose as law giver is necessary because Republicans are obstructionist, and, anyhow, the Constitution’s limits are the dusty artifacts of the 18th century unsuited to modern times. One irony is that they dismiss the House suit even as they claim to be troubled by national security surveillance that has always been grounded in both statute and the Constitution, with no evidence of abuse.
Yet Mr. Obama’s claim that he can pick and choose which laws to enforce is far more offensive to the American tradition than anything the government has done in the name of antiterrorism. The House challenge is an opportunity to vindicate the genius of the Framers to prevent the exercise of arbitrary and centralized power.
while David Rivkin and Elizabeth Price Foley, the architects of the argument in favor of the validity of such suits, explains their rationale:
A president who unilaterally rewrites a bad or unworkable law, however, prevents the American people from knowing whether Congress should be praised or condemned for passing it. Such unconstitutional actions can be used to avert electoral pain for the president and his allies.
If Mr. Obama can get away with this, his successors will be tempted to follow suit. A Republican president, for example, might unilaterally get the Internal Revenue Service to waive collection of the capital-gains tax. Congress will be bypassed, rendering it increasingly irrelevant, and disfranchising the American people.
Over time, the Supreme Court has come to recognize that preserving the constitutional separation of powers between the branches of government at the federal level, and between the states and the federal government, is among the judiciary’s highest duties.
My guess is that the suit will not prevail. The Court will seize the nearest figleaf and, since the suit is only being brought by one house of Congress, dismiss it for lack of standing.
The reality, I think, is that not taking sides is taking sides and such a decision will reasonably be seen as the Court siding with the president and the Senate. If the Republicans take the Senate in November, stay tuned for the next chapter in January.