John Boehner’s Lawsuit Against President Obama Probably Won’t Succeed in Court—But It Doesn’t Have To

A poll released earlier this week
found that a majority of Americans believe House Speaker John
Boehner’s recently announced lawsuit against the president is not
legitimate, and agree that it is “political stunt.”

That’s half right. The suit is probably best understood as a
sort of formal protest measure. It’s not that Boehner doesn’t want
to win, nor that the suit lacks any serious legal grounding—but
it’s less about scoring a binding legal victory than it is about
officially drawing attention to the Obama administration’s casual
approach to implementing and enforcing the law.

To do that, Boehner has stripped down the case against the
president down to a single, issue: the delays of the health care
law’s employer mandate. There are a number of reasons for this
choice. A single-issue challenge is more likely to succeed in court
than a grab-bag lawsuit containing multiple grievances. It also
focuses the legal arguments, and the larger debate, on an executive
branch action that even
some liberal legal analysts (though certainly not all) have

judged to be an overreach. The point it makes is simple:
Although there is obviously a political component, it is not
strictly a political squabble; on this one issue, at least, there
is agreement across the ideological spectrum that the president has
overstepped his authority.

It’s an illustrative example of an instance of the president’s
lawlessness rather than a wholesale case against a pattern of
behavior. And it’s one that gives Boehner the strongest possible
hand by focusing on an implementation delay that, as Case Western
Reserve Law Professor Jonathan Adler has
written, is plainly illegal.

That doesn’t, however, mean that Boehner is certain or even
likely to win. On the contrary, the odds are stacked against his
suit less as a result of the overall legal question and more
because of the problem of standing. Congress can’t simply sue the
president for illegally implementing a law. Challengers must first
prove that someone attached to the case is directly harmed by the
refusal to implement the employer mandate.

That’s not an easy task in this case. Who is directly harmed by
the delay? Not the firms who now do not have to pay the penalty.
Congress will have to make the case that the House as an
institution is harmed by the president’s refusal to execute the
law.

Generally, that’s a difficult case to make in the courts,
although as a Newsweek
report on the suit explains, there are several things that can
be done to give the challengers a better shot: “Specifically, bring
the lawsuit on behalf of the full House rather than a handful of
members, sue over an action that no private party will have
standing to sue for (like the employer mandate delay), prove that
there is no legislative remedy, and, finally, frame the issue as
the executive branch nullifying the power of Congress.”

As George Washington University law professor Jonathan Turley

said on MSNBC last weekend, the standing hurdle is high, “but
it’s not necessarily insurmountable. The court has never truly
closed the door on what’s called ‘legislative standing,’
particularly if it’s based on the institution—if the House of
Representatives empowers the group that litigates this case.” This
isn’t a surefire winner, or even close, but it’s not meritless
either. As Adler told Newsweek, “If I had to handicap it,
I don’t think it’s going to work, but I don’t think it’s a
frivolous argument.”

But for Boehner, making the lawsuit work isn’t the only, or
perhaps even the primary, goal. The point is the argument.
Republicans will have the opportunity to point out, in a formal
setting, a specific instance in which there is widespread agreement
that President Obama has failed to fully execute the law. It
doesn’t have to work. It just has to make a point. So, yes, it’s a
stunt—but it’s a legitimate one.