July 9, 2014
Over the weekend, Republican Speaker of the House John Boehner (R-Ohio) wrote an op-ed for CNN.com that explained why he felt it was necessary to sue President Obama. The piece was aptly titled, “Why we must now sue the President.”
In this op-ed, Boehner accuses Obama of “circumvent[ing] the American people and their elected representatives through executive action, changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold.”
Boehner further adds that, later this month,
we will bring legislation to the House floor that would authorize the House of Representatives to file suit in an effort to compel President Obama to follow his oath of office and faithfully execute the laws of our country.
This article followed an announcement at the end of June that Boehner was planning on bringing suit against President Obama for his use of executive orders. It’s hard to say which specific executive orders Boehner is referring to with no complaint having yet been filed, but based on congressional Republican reactions, it’s not terribly difficult to guess.
Among the executive orders likely to be at issue are those regarding climate change, immigration, minimum wage, and gun regulation, but the lawsuit may well target the administration’s one-year delay of the ACA employer mandate, despite the fact that Republicans generally do not have any ideological disagreement with the substance of the decision.
First things first, though: would congressional Republicans even have standing to bring suit? Although a suit exactly like this has never been filed, we do have some guidance on the standing question more broadly.
First, there is the 2011 case of Kucinich v. Obama, in which ten members of the House of Representatives sued President Obama for his authorization of military action in Libya. The lawsuit was dismissed for lack of standing, citing to the Supreme Court’s 1997 decision Raines v. Byrd that found that
generalized injuries that affect all members of Congress in the same broad and undifferentiated manner are not sufficiently ‘personal’ or ‘particularized,’ but rather are institutional, and too widely dispersed to confer standing.”
Of course, if congressional Republicans’ highly paid attorneys are worth their salt, they should be well aware of these precedents and find some way to maneuver around them. But then the question becomes whether there even exists such an alternate theory of standing for the Republicans to rely upon. And there isn’t one currently in existence, at least as it would be applied to the current case.
So it stands to reason that we won’t know the exact theory of standing that will be employed in this lawsuit until the complaint is actually filed.
Assuming, arguendo, that whichever theory of standing presented is upheld by the court, what would become of the merits of the lawsuit?
Again, until the complaint is filed, we are left to guess at which executive actions in particular will be targeted. However, nearly all of Obama’s actions that may conceivably be targeted by this lawsuit are well within the historical bounds of the executive actions of previous presidents since President Franklin Roosevelt. The ones that may be more susceptible are those, such as the aforementioned delay of the ACA employer mandate, that effectively modified the implementation of a law passed by Congress.
Nevertheless, courts are largely loathe to involve themselves in disputes between the other two branches of government, and there’s nothing particularly noteworthy about the facts of this case that would persuade most federal judges to intervene.
In short, the lawsuit doesn’t look to have a very high chance of success. But, once again, we won’t be able to make any predictions with any serious degree of certainly until after we can get a look at the complaint.