Boehner's political lawsuit

In late June, Speaker John Boehner (R-Ohio) announced that he would sue President Obama for failing to, in the words of the Constitution, "take Care that the Laws be faithfully executed." At the time, Boehner did not specify exactly which actions by the administration he would allege were illegal — in a two-page letter to his House colleagues, he simply wrote that, "On matters ranging from health care and energy to foreign policy and education, President Obama has repeatedly run an end-around on the American people and their elected legislators, straining the boundaries of the solemn oath he took on Inauguration Day." Given the lack of specifics, news reports focused on everything from the Deferred Action for Childhood Arrivals program, to various delays and modifications in implementing parts of the Affordable Care Act, to proposed new Environmental Protection Agency regulations, to the prisoner swap for Army Sgt. Bowe Bergdahl.

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A couple of weeks later, when Boehner finally announced the specifics of his proposed suit and drafted the necessary resolution to authorize it (reported out of the Rules Committee yesterday), he had narrowed his complaint down to a single claim focusing on the administration's delay in implementing the employer mandate in the Affordable Care Act. The mandate has been delayed twice, and under the most recent delay (announced in February), it will not come into effect until 2016. Boehner asserts that this violates a statutory requirement that the mandate take effect in 2014.

As numerous legal scholars before me have pointed out, Boehner's chances of winning the lawsuit are slim to none. A court is likely to find that the House lacks standing, which is to say that it cannot credibly claim that the delay of the employer mandate harms the House as an institution, or that the case presents a political question, outside of the scope of the judiciary's competence. More tellingly, however, the suit is likely to be moot long before any judicially ordered remedy could be put into effect. After all, lawsuits take time, and even if the House were to win before a district court, any remedy would be stayed until a court of appeals had time to rule. If Boehner won before the court of appeals, then the administration could seek rehearing en banc and then Supreme Court review. By the time that's all over, it will be at least summer of 2016 — after the employer mandate is currently slated to go into effect, thus mooting the case.

But, of course, all of that is beside the point. Boehner isn't looking to win a lawsuit; he's looking to win the politics. In pushing back against a president, congressional leadership is always at something of a disadvantage: The president in 21st century America simply has a bigger bully pulpit. Boehner's disadvantage is compounded by two other factors: First, Republicans only control one house of Congress, meaning that they cannot spark public confrontations by passing bills that the president will veto. And second, Boehner has had some trouble corralling his own caucus, meaning that, as he seeks to provoke public confrontations with the president, he needs to keep one eye on quelling confrontations in his own ranks.

Seen from this perspective, filing this lawsuit was a canny and creative move from the Speaker. First, unlike passing a bill, it is something that the House can do on its own, thus obviating any need for Senate buy-in. Second, the suit may help keep his own caucus in line — as Brian Beutler suggested, it may serve as a "relief valve for the building pressure to draw up articles of impeachment," and Boehner knows that an impeachment drive would almost certainly hurt Republicans far more than it would hurt Obama. Indeed, former Alaska Gov. Sarah Palin's (R) best efforts notwithstanding, there has been relatively little support among House Republicans for impeaching Obama.

Third, and most importantly, filing the lawsuit has already been an effective way of getting the media to convey a sense to the American public that Obama has been stretching the limits of his power. Consider, again, the rollout of the lawsuit that I described in the first two paragraphs. By announcing that he was filing a suit, but not announcing what the suit would include, Boehner got the media talking about all the possible executive overreaches that might form the basis of the suit, precisely the public discourse he wants to foster. News of the suit provoked a response from the president, which was good for a few more news cycles. Boehner then announced the actual basis for the suit, which was good for a few more news cycles. Ditto for when the full House votes to authorize it, and again when he actually files the suit.

Of course, getting your case out there to the public is only half the battle. Boehner is undoubtedly hoping both to fire up the Republican base in advance of the midterms and to convince some undecided voters that Obama really has overstepped his bounds. It remains to be seen how successful he will be. But in order to do either of those things, he first has to get his message out there. That's what this lawsuit was intended to do, and so far, that is what it is doing.

Chafetz is professor of law at Cornell Law School, where he writes on legislative procedure, the separation of powers and constitutional history. His first book, Democracy's Privileged Few, was published by Yale University Press in 2007. His second book, Congress's Constitution, is under contract with Yale University Press.

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