So Sue Him

This chapter explores a diverse set of member lawsuits, spanning the “pocket veto,” three cases related to treaty changes/withdrawals, and a case on the Affordable Care Act that was settled recently. All of these cases highlight the way that conventional partisan warfare creeps into legal battles. The member-plaintiffs in these cases are attacking opposition presidents for institutional behaviors and constitutional interpretations that they appear to forgive in their own presidents. This partisan dynamic dilutes the power and potential significance of the claim. Moreover, if federal courts are being dragged into separation of powers questions just to expand the arena of partisan combat, there is no deep reset of systemic balance of power in the constitutional order. Congressional power should mean more than defending one's own party when in the minority or in the majority under conditions of divided government.