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  drawing attention to the Obama administration's casual approach to implementing and enforcing the law. The goal is to channel the Republican party's many frustrations with the president into an official forum that focuses on one of the clearest instances of executive branch overreach. 

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 is a stunt—but it's a legitimate one.