Boehner: House will sue Obama

Greg Nash

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Speaker John Boehner (R-Ohio) said Wednesday he would initiate a lawsuit against President Obama on behalf of the House over the president’s frequent use of executive actions that Republicans believe are beyond his legal authority as president. [READ BOEHNER MEMO TO HOUSE REPUBLICANS.]

During his weekly Capitol press conference, the Speaker accused the president of not “faithfully executing the laws of our country” — a violation of his oath of office and the Constitution. But Boehner said the lawsuit was not an effort that would lead to an attempt to remove Obama from office.

“This is not about impeachment,” Boehner said. “This is about his faithfully executing the laws of our country.”

The House will vote on legislation authorizing the lawsuit in July, Boehner told Republicans in a memo sent later Wednesday.

The legal action escalates a long-standing confrontation between Obama and House Republicans who believe he has exceeded his constitutional authority through executive actions on a range of issues, from delays in the implementation of the healthcare law to energy regulations to the enforcement of immigration laws.

The Speaker would not say what specific executive actions the House would challenge, and he did not list any in his two-page memo.

“On one matter after another during his presidency, President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce — at times even boasting about his willingness to do it, as if daring the America people to stop him,” Boehner wrote. “On matters ranging from healthcare 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.”

A lawsuit could take years to wind itself through the courts and outlast the Obama presidency itself. 

Democrats immediately dismissed the move as a political exercise, comparing it to the GOP’s impeachment of the last Democratic president in the 1990s.

“Voters will punish House Republicans for this latest example of putting partisan attacks ahead of middle-class progress just like they did when Republicans over-reached in the ’90s,” said Rep. Steve Israel (N.Y.), chairman of the Democratic Congressional Campaign Committee. “Let’s call this what it is: a reprehensible waste of taxpayers’ money and a desperate political stunt meant to gin up the Republican base at a time when House Republicans are historically unpopular.”

Minority Leader Nancy Pelosi (D-Calif.) on Tuesday called the move “subterfuge,” but Boehner denied it was designed to gin up the Republican base in the November midterm elections.

“This is about defending the institution in which we serve,” he said. “You know, if you look back over the last 235 years of our history, there’s been a movement between the inherent powers of the executive branch and the inherent powers of the legislative branch. 

“And what we’ve seen clearly over the last five years is an effort to erode the power of the legislative branch,” the Speaker continued. “I believe the president is not faithfully executing the laws of our country, and on behalf of the institution and the Constitution, standing up and fighting for this is in the best long-term interest of the Congress.”

House Republicans have been mulling possible legal action against Obama for months as frustration has mounted with his executive actions. 

In his memo, Boehner wrote that Obama’s “aggressive unilateralism has significant implications for our system of government.”

“If the current president can selectively enforce, change or create laws as he chooses with impunity, without the involvement of the legislative branch, his successors will be able to do the same,” he wrote. “This shifts the balance of power decisively and dangerously in favor of the presidency, giving the president king-like authority at the expense of the American people and their elected legislators.”

At the White House, press secretary Josh Earnest said House Republicans had “shifted their opposition into a higher gear” but that Obama would not move off his strategy of using his “pen and phone” to circumvent congressional gridlock.

“Frankly, it’s a gear I didn’t know existed,” Earnest said. “The fact they are considering a taxpayer-funded lawsuit against the president of the United States is a step that I think most of the American people wouldn’t support.

“We feel completely confident that the president was operating within his authority,” he said. “I am not sure what the strategy is behind the House Republican announcement today.”

Republicans will have a tough time demonstrating that Obama overstepped his bounds, said John Hudak, a fellow in governance studies at the Brookings Institution.

“In general, courts have deferred to the president administratively with broad latitude,” he said. “In that sense, any lawsuit is at a disadvantage.”

The House will have to cite specific actions that violated the constitutional separation of powers, and in many cases, Obama’s executive orders have followed guidance in laws passed by Congress, Hudak said.

While individual lawmakers and groups of members have tried to sue the president over executive overreach, Boehner’s office could not point to a specific case where Congress as an institution has successfully brought a lawsuit.

“At various points in our history when the executive branch has attempted to claim for itself the ability to make law, the legislative branch has responded, and it is only through such responses that the balance of power envisioned by the Framers has been maintained,” Boehner wrote in his memo, without being more specific.

Federal courts, and particularly the Supreme Court, have been reluctant to intervene in cases that center on political, rather than constitutional, questions, Hudak said.

“The likelihood of these actions being heard by the Supreme Court is quite low, but that’s not to say that it’s zero,” he said.

Boehner said the House lawsuit would be brought by the general counsel’s office at the direction of the Bipartisan Legal Advisory Group. The Speaker last used the group to defend the Defense of Marriage Act in court after the Obama administration backed out of the case. The Supreme Court struck down DOMA, and Democrats criticized Boehner for wasting taxpayer funds on its defense.

Cristina Marcos and Justin Sink contributed.

This story was first published at 12:30 p.m. and updated at 8:44 p.m.

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