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February 11, 2016

Boehner Moving Toward Late-July Obama Lawsuit Vote

It's the second time in as many weeks that Boehner has been threatened. (Bill Clark/CQ Roll Call)

Boehner plans a late-July vote on the Obama lawsuit. (Bill Clark/CQ Roll Call File Photo)

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, 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.

Related stories:

White House: Boehner Lawsuit Uses Taxpayer Money Against Obama for ‘Doing His Job’

Boehner Planning House Lawsuit Against Obama Executive Actions

Boehner’s Memo to Members on Obama Lawsuit

Obama Executive Order to Ban LGBT Discrimination

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  • Denise

    late july. isn’t this when these clowns go on their summer break

  • FormerEYstud

    How funny is that, the lawsuit might get tossed for the exact reason obama is issuing executive orders

  • Ulyssess

    Oooooh this is so scary, Obama being sued by the House…

  • ShadrachSmith

    Pure campaign stunt, but a good one. Certainly a better one than Obama illegally flooding the country with a few hundred thousand illegals.

    If the Ds do well this cycle, we might as well all get used to moving around in busses. The Cloward-Piven strategy successfully applied on a grand scale could well bring the collapse of our entire society, and the Birth of Brave New World.

    • rushthis

      …yes, yes. Dogs and cats…living together…

    • Republicans_are_Evil

      The sky is falling!

      • CountMahdrof

        I’ll remember that crack the next time one of you AGW zealots whines about climate change. Libocrisy abounds.

        • Republicans_are_Evil

          Climate change is supported by evidence. It is not a right wing conspiracy theory.

          • Kyle “Felis” Hems

            I say we hear the Count out on this subject. Mostly because I’m bored and have all this popcorn that’s getting close to expiry date…

          • Republicans_are_Evil

            You want to ignore the evidence?

          • Kyle “Felis” Hems

            Oh no. My position is quite to the contrary – I’m always prepared to give the actual evidence (with citations) to pretty much every single point his ilk trots out.
            I also like watching the kind of people who actually use the word “Libocrisy” flail around for my entertainment :P

  • Otis Day

    Something will happen to delay or cancel the vote. It may be too windy that day or it’s too cloudy. Maybe the bottled water for Congress didn’t arrive on time. It’s all Bush’s fault.

    • Brenda Huddleston

      So true that it is really sad!

  • Republicans_are_Evil

    Obama has failed to execute the laws. Specifically, Obama failed to prosecute the Bush administration for war crimes. Why not sue Obama for that? You actually have legitimate ground to go after Obama if you are willing to throw your own under the bus.

  • 300gr3150fps

    Boehner is bringing lipstick to a gunfight.

    • wanda jefferson

      only if it is his shade yellow with a hint of red in the eye

  • Matt

    Boner’s lawsuit will accuse Obama of Presidentin’ While Black.

  • mashpukah

    This will be a great use of time and resources and totally pay off for the GOP… just like the Clinton impeachment.

  • CountMahdrof

    So he’s saying that the Constitution can be legitimately ignored if Congress is deemed “dysfunctional”. Do the courts have a firm, Constitutional method for determining dysfunction, in Congress or the WH? It would make separation of powers meaningless if one branch can simply declare one of the other two dysfunctional and act unilaterally. This from a law professor?

    We are such a frivolous nation

  • Yonatan YONATAN

    What about the three million unemployed families here ,still without an extension of benefits, since late last December? These families have been driven to financial ruin over the past six months, due to the inaction of the senate to pass the extension bill. These families have lost everything they have ever worked for, while the politicians play their party politics. Both political parties have FAILED these families, and have shown a total disregard for the poor and unemployed, and jobless in this country. While billions are sent to the Ukraine, and more money spent on the defense of Europe, these American families are left to struggle on their own, falling deeper and deeper into debt. The government spends more time arguing than on fixing the real problems that we’re facing. I’m referring to the poor, because life’s still a holiday for the wealthy in our country.

    • Mike8301

      Thank you for speaking up on the unemployment. I so agree with you. I’m one of the millions and have lost everything.

    • wanda jefferson

      but the media is also to blame because they focus only weather , hollywood, and nothing about the euc problem and why should they care the the newscasters make millions so to bad if there is no news about the poor I blame bonehead red eye bonner and the rep, and the dems , and up for not gathering what we can and march with banners to washington to be in the news I am only one person and need at least 500 or so to make a difference.

  • DickGinAz

    Recently I was getting emails (before I requested they stop) from Republican interests pushing the anti-Obama hatred and was struck with the large volume and exaggerated venom of them and of course with how ridiculous they were in ignoring reality and just exploiting emotions. They are always very aggressive with their propaganda and are obviously counting on exciting people’s emotions and keeping voters from ever being objective and rational. “Obama is responsible for and at fault for every problem” is their theme and common sense literally destroys that … which should make people understand they are being lied to, being insultingly taken for granted as if “pawns” to be conned, used and abused.

  • Chester Fields

    Hussein Obama is delusional, deceitful, and dishonest.He simply cannot be trusted.

  • teapartyidiots

    I enjoy political theater.

  • Mike8301

    Lawsuit?? Really Mr. Boehner, is this anyway to act when you don’t get your way. Since you’ve been office, all you’ve done is sounded out when you and your party don’t get your way. Frankly, I’m tired of hearing and seeing your on T.V. complaining about our government. I’m turning a deaf ear now, can’t wait till your voted out of office.

  • Hugh Jass

    Many things we rely on today, such as antibiotics and software, were developed by people who could only take the chance that others might find their products useful.

  • Ash Berger

    The herky-jerky processes of technological advance are destroyed when those who preach from collectivism’s altar attempt to direct that everything be made equally available to everyone.

  • Lo Wodor

    When Hussein Obama was elected, the home ownership rate in the United States was 67.5 percent. Today, it is around 65.0 percent – the lowest in 18 years.Reference:

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