Speaker John A. Boehner of Ohio is moving cautiously toward a late-July vote to authorize a lawsuit against President Barack Obama, juggling legal and political considerations as he tries to check executive power and stoke the Republican base.
Committee staffers are discussing several executive actions Boehner could target in a lawsuit and trying to whittle the list down to the fewest number of actions that would give the suit the best chance of being heard by a skeptical judiciary.
In a Sunday op-ed on CNN.com, Boehner came no closer to defining which specific executive action he would scrutinize, but he did outline a few broad areas where he believes the president has overstepped his authority.
“The Constitution makes it clear that the President's job is to faithfully execute the laws,” Boehner wrote. “And, in my view, the President has not faithfully executed the laws when it comes to a range of issues, including his health care law, energy regulations, foreign policy and education.”
Notably, Boehner did not make explicit mention of immigration law, the arena in which Obama took one of his most well-known executive actions. The administration’s 2012 Deferred Action for Childhood Arrivals memorandum directs immigration officials to use prosecutorial discretion when dealing with undocumented immigrants who came to the country as young children. Sources on and off Capitol Hill have doubts that Boehner would target any immigration action, a move that could alienate Hispanic voters and give political fodder to those who already seek to paint the Republican party as nativist.
A more likely scenario, sources noted, would be for Boehner to target one of Obama’s executive actions relating to the Affordable Care Act. The administration has delayed key deadlines in the law’s implementation, for instance the mandate that employers provide health coverage to their employees.
Earlier this year, the administration also quietly changed provisions in the law making billions of taxpayer dollars available as risk insurance in case companies lose money by providing coverage through the Affordable Care Act.
Targeting the health care law would be in keeping with Republicans’ political narrative, and if the law is unpopular nationwide, doing so would have little political downside. But questions remain about whether any case would pass muster in the courts, and the administration has argued that the Treasury Department has the authority to provide transition relief when implementing new legislation.
Jonathan Turley, a professor of law at The George Washington University Law School, said Republicans could find the best chance to have their case heard if it targets the Affordable Care Act, particularly because language negotiated by Congress has been changed by the administration, opening up a balance of powers question.
He added, though, that the suit will have to show restraint in order for the courts to take it seriously. Courts have been unwilling to step between the branches if it looks as if they are only being called upon to settle political scores.
“If the lawsuit comes out as a peddler’s wagon with every possible grievance against the president, it will have a poor chance of success,” he said. “The more issues that are piled into these lawsuits the more it looks like a political question.”
Courts have also been wary of congressional lawsuits if the complaining branch has other avenues by which to defend itself — namely, legislation. That precedent is called the political question doctrine.
In many cases, the courts have ruled that Congress can indeed check the executive by passing legislation or withholding funding, said separation of powers scholar Louis Fisher, author of a book about constitutional conflicts among the three branches.
“The courts will generally say, ‘You’ve got your own institutional remedies,’” he said. “It’d be tough for them to prove even in the Affordable Care Act.”
Boehner mentioned the House’s prior attempts to check Obama’s power, but complained in his CNN op-ed that the Senate has yet to act. That kind of an argument is not likely to convince a court to give a case standing, said Greg Magarian, professor of law at Washington University of St. Louis.
The irony, then, could be that the very dysfunction Obama uses to justify skirting Congress would be the case’s undoing; the courts could hold that Congress is simply too dysfunctional to defend itself against a powerful executive.
“This plays right into the president’s argument, which is, ‘Look, I’m doing whatever I can … because these rubes here on Capitol Hill can’t pass a resolution to agree on what time it is,’” Magarian said. “If that’s where the argument end up, if that’s where all this jockeying lands you, I think this thing is dead in the water. … If the poetical question doctrine has a core, this is it: If the branches have the power to duke it out, the courts aren’t going to step in.”
In the meantime, the administration has signaled that they are not taking the lawsuit seriously and plans to continue to go around Congress when necessary. Neil Eggleston, the incoming White House counsel, minimized the suit in an interview with the Associated Press over the weekend.
"As I used to tell clients in private practice, anybody can sue anybody over anything," Eggleston said. "The fact that he's going to say that he's going to bring some lawsuit is not going to affect what the president is going to do."
When Republican leaders decide on their target, text of a House resolution will be sent to the Rules Committee for a hearing likely next week or the week after, and legal experts will be called in to testify about the merits of legal action.
Finally, the House will vote on the resolution sometime before the chamber recesses for August, giving Republican members ample time to discuss the vote back home in their districts.
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