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.

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  1. Boehner has smartly crafted this one in my opinion. Let’s all marvel at the administration launching a vigorous defense of its delaying of its very own oh so wonderful ACA.

    1. They’ve really painted themselves into a corner.

      It’s hard not to wonder whether the regulations and government actions to date couldn’t get tossed just based on an “arbitrary and capricious” standard, which has certain been exercised throughout this nonsense.

      1. Republicans shut down the government in an effort to delay Obamacare. Now they’re suing the President over delays in Obamacare! This just proves that they hate the President as a person (probably for racist reasons) and that they don’t even have a coherent policy response to Obamacare and the healthcare situation in this country.

        That’s the argument you’ll hear, and it will resonate with a large number of people. Maybe I’m wrong, but I think this will backfire on Boehner and the GOP.

        1. Actually, ELizabeth Warren is claiming that the shutdown was over birth control.

          That’s the Goebbels-style big lie they’ll keep repeating until it’s truth.

          1. Nothing will stop them from claiming it was both.

        2. The fact that such arguments aren’t laughed off shows how deep the problem is. Even if the GOP were solely motivated by racism and personal antipathy towards this president, his and many of his officials’ malfeasance, incompetence, and dishonesty have been amply demonstrated.

        3. They don’t need to win the WH in 2014.

          That line of argument just makes it easier to say that, given that POTUS ended up doing what the Republicans wanted to do in the first place, the Republicans were just being practical, while Harry Reid was pursuing a policy of deranged hyperpartisan brinkmanship. QED, Harry Reid and his close allies are the main source of dysfunction in the Senate and consequently the government, so vote Team Red in November and get the government back to work!

          Shifts the blame from The First Black President (and paints him as agreeing with Rs) to Old Rich White Dude who wants to ban the First Amendment.

        4. Alternatively, the Demoncraps thought Obamacare was so important, they shut down the government to force it into operation.

          Now they want to delay!?

          The Republicans said Obamacare wasn’t ready. They were right. The Demoncraps said Obamacare would save the average family an average of $2500, that they could keep their plan and keep their doctor.

          The Demoncraps LIED.

        5. unless you are trying to say the president is incompetent because he is black, you’re statement makes no sense.

          the president is viewed as incompetent because of his polices, not because his color.

        6. I d too, this is just more confirmation that the modern Republican party is a bunch of crazy extreists, especially since the nutty impeachment crowd will try to use this as a springboard.

      2. I keep wondering what would prevent a Republican president in 2016 from just saying “The ACA implementation is delayed to 2024.” at this point. Precedent has been set.

        1. What a joy it would be to see the cranial explosions this would cause among the president’s current apologists!

  2. For most of our history, we’d have already impeached this president and a good number of his officials. We’re that far off the constitutional path.

    Obama’s ineptitude and ever-increasing unpopularity keep him from being too dangerous, though it doesn’t stop the damage that’s occurring, but what’s next? Eventually, we’re going to elect a dictator. He may superficially seem like a president, but he won’t be limited at all. There are some last vestiges of limited government that still slow down this president’s train–at least some of the time–but our collective silence is quite instructive to wannabe tyrants.

    1. Pretty much this – either the country really has changed in culture, or the safeguards originally put in place were too weak to stop this from happening.

      1. The major safeguard – the second amendment – relies on a culture of very low tolerance for tyranny.

    2. The GOP is too damn scared to impeach BO because of the media/political backlash. And they know it will never pass the Senate what with Mr. Reid’s candy ass in charge. Boehner suing BO is the best option for checking BO’s blatant disregard for following his own laws.

      1. Until the GOP takes the Senate and the new rules allowing the simple majority to run the upper house.

        1. Could happen and it would be fun to watch.

      2. Basic game theory. The Republicans don’t need to impeach him now. He is weak and nearly powerless. Better to leave him in place and make him a campaign issue for the 2014 elections and beyond. The lawsuit is just one way to keep his bullshit firmly in the minds of conservative and centrist voters.

    3. He hasn’t done a single thing that even comes close to justifying an impeachment. When you excrete extremist crap like that you really just undermine the very strong arguments against his (largely Republican) policy agenda. You guys are Barack Obama’s best friends.

  3. Oh, NOW they decide they have a responsibility to participate in the writing of the laws.

    How long has Boehner been in office?

    1. Yeah, but in his defense, he wasn’t the leader then. They did oppose the law.

  4. “Obama to Congress: You’re not the Boss of Me.”

  5. “Obama to Congress: You’re not the Boss of Me.”

  6. And what remedy are they seeking exactly?

  7. And what remedy are they seeking exactly?

    Double our money back, hopefully.

  8. While I’ve never brought a lawsuit that I didn’t hope to win, I’ve brought a few that I didn’t need to win to, err, win.

    This will be their challenge:

    Republicans shut down the government in an effort to delay Obamacare. Now they’re suing the President over delays in Obamacare!

    Coming up with a tweet-worthy response is going to be tough.

    1. The most legitimate, principled argument for the suit is enforcing the rule of law. But do enough people even take that seriously enough for it to be a winning platform?

      There is a political argument that it benefits the Republicans if more people are fully exposed to the pain that Obamacare will cause. I doubt the GOP wants to make that argument in public, though.

      Which basically leaves admitting that it is a stunt, though one with a purpose (as Peter says here). Which will just play right back into the Democrats’ hands.

      I don’t see many other options.

    2. If the president won’t enforce a law he begged for and then signed with utmost fanfare, then he deserves to be sued.

    3. The Democrats shut down the government to keep the legislature from changing the law of Obamacare. Now they’re using the President to change Obamacare!

    4. Rs: Delays are needed!


      POTUS: Rs are right, Reid!

      Good policy, but bad precedent.

    5. is this tweet worthy?

      Democrats refused to fund government in an effort to protect Obamacare. Now they’re exempting their friends and sticking us with it!

  9. 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.

    I’ve yet to see why requiring standing to sue the government is a good thing.

    1. Citizen’s impeachment!

      1. Anarchy!!! No government!!! Road Warrior…btw I can totally kick all of your asses, I have been planning it!!!

  10. Perhaps the suit will fail but it shouldn’t. The problem with impeachment as a remedy is that it is so drastic. If you don’t allow the House to take the President to court and make the President follow the law, the House is left with either ignoring it or taking the drastic action of impeaching the President or de funding the government. I am all for that but most are not. The reality is that only the most horrific lawlessness on the part of the President is ever going to get the public to support impeachment. So without this avenue of redress, the President is free to ignore almost any law he likes. And that is a problem.

    1. Its a good point I hadn’t considered. Allowing this limitation allows for a workable separation of powers avenue that isn’t all or nothing.

    2. So, say the republicans win the suit, and a court orders Obama to faithfully execute the law as written. What then? Obama controls all of the guys with guns. What if he has a Jacksonian “he’s made his decision, now let him enforce it” moment? He doesn’t care what congress or the law say, why would he care what the court says? Would the media still run cover for him? Would congress bother to impeach, since his term would likely be just about over at that point?

      1. He can do that. And at that point it is up to the public to defend their own Republic. The thing about impeachment is that it can only happen when at least some of both parties turn on the President. As long as it is just one side wanting it, the President will always win.

        The only way both sides turn on the President is when the public makes supporting the President untenable for a decent portion of the President’s own party. When that happens, the party turns on the President and he is done.

        We are actually closer to that than you might think. The more unpopular and out of control Obama gets, the more Democrats in Congress worry about it affecting their ability to win elections and the long term prospects of the party. If November is a real bloodbath for Democrats, the Democrats in Congress will go to Obama and have a come to the Chocolate Jesus session with him and tell him to change course to at least some degree. If he doesn’t, the Democrats will impeach him themselves.

        1. We are actually closer to that than you might think.

          I hope you’re right. I would like to be as optimistic as you, but current polling data makes it less than certain that the republicans are a lock to even take the senate, much less indicate a democrat bloodbath. I think we have reached a point where partisanship trumps everything, because they have absolutely convinced themselves that the other side is just evil, and all means of opposing them are therefore justified.

          1. The thing to remember is that only about 40% on each side are rabid partisans. The other 20% are low information self proclaimed independents. You can’t win with just your partisans.

            We will see what happens in November. That is still a long ways away. But unless the Democrats can find a way to get their partisans a lot more motivated than they are, they are in a lot of trouble. Right now the enthusiasm gap between the two parties is worse for the Democrats now than it was in 2010. If that doesn’t change, they are toast.

      2. I think if the GOP wins the Senate, and the President openly attacks the legitimacy of the courts, they will find a way to get him out of office.

      3. Obama controls the guys with the guns, but Congress controls the paychecks of the guys with the guns.

        “Do your job, or don’t get paid.”

    3. The reality is that only the most horrific lawlessness on the part of the President is ever going to get the public to support impeachment.

      Team players will support their team no matter what. Obama could rape choirboys on the steps of the Capitol and Team Blue would still support him.
      Yes, I really believe things have gotten that bad.

    4. Were you a “strong executive” guy prior to Jan. 2009? Just a hunch.

      1. No Tony I wasn’t. But since you are completely immoral and utterly lack principles or the ability to think in the abstract, it is not surprising that you would think everyone else is just like you.

  11. So a majority of people think the lawsuit is both a political stunt and a waste of taxpayer money… but it’s a legitimate wasteful stunt! Because conversation or something!

    When Republicans do something that is unpopular and pointless it means they are tossing some gristle to their loyal base of redneck morons. This is impeachment-lite, and Boehner knows full well that it will not make his party any more popular, but at least it won’t be as bad as impeachment. He probably also knows that the GOP base won’t be satisfied until Obama is dragged behind a pickup truck.

    1. Yes, people only hate lawless dictator-lite behavior when it’s a black man doing it. Please, progs, cling tightly to that race card as you get flushed, take the damn thing down with you. The more desperately you play it in defiance of facts, the more powerless it gets. But what else do you have?

      1. Delaying a healthcare law’s employer mandate is hardly the stuff of Stalin (or Bush), but I guess wrong is wrong.

    2. Yes Tony, the actual issue of whether they are right is irrelevant. Obama can’t be wrong.

      It is a shame you have no idea how funny you are. It really is. But I guess if you were smart enough to realize how silly and ignorant you sound, you wouldn’t be so silly and ignorant.

      1. The only issue here is Republicans’ radicalism and inability to govern. I said it years ago: they would force the president to take more unilateral actions and it would set bad precedents. You can hardly blame him for not rolling over and playing dead when they snap their fingers though.

        1. Yes, by trying to delay the employer mandate by legislation, they forced Obama to do so by executive order. Makes perfect sense, if you’re a moron.

    3. Tony:

      When Republicans do something that is unpopular and pointless it means they are tossing some gristle to their loyal base of redneck morons.

      OK, now let’s have an open, honest conversation about gun control.

      1. But that’s not possible, is it, and that’s not gun control advocates’ fault, is it?

        1. Tony, quit making baseless assertions that contradict the will of the people expressed through codified law. I’m tired of hearing your whining dogma.

    4. Stunt? You mean like this?


      Why are Senate Democrats wasting time and money while our infrastructure crumbles?

      1. Except that would have been good policy if it hadn’t “failed” 56-44.

        1. Ah, but it didn’t pass the test of becoming codified law. that makes it a baseless assertion.

          I mean, what’s this talk of good and bad policy outside of what’s codified law? Pure arbitrariness.

          1. It’s funny how a change of topic brings out a completely different set of standards and principles, isn’t it? It’s hard to grasp the glaring contradictions, as we move from one topic to another.

            Wait a minute: how about we just assume that Tony wants to give the government whatever arbitrary power it needs to implement his subjective policy preferences, but that he won’t come out and say that. Instead, he’ll shift standards of evidence, logic, rights, and assertions however necessary to justify whatever position he’s trying to take in the moment, and really, whatever he’s saying the moment can actually be ignored as some general policy or principle.

            Whoa. Funny how, once you make that assumption, it all makes perfect sense.

            1. I have no idea what you’re on about. I’m the one who consistently defends democracy against you guys (who by process of elimination must favor tyranny), even if it doesn’t give me what I want. I also have policy preferences, which I believe is no crime. Unless I’m missing the point?

              1. I also have policy preferences, which I believe is no crime. Unless I’m missing the point?

                The point is, you’ve declared all policy preferences outside of codified law as mere assertions of dogma, and irrelevant.

                Except, of course, your subjective preferences. They’re special, because you’re so special.

                That’s completely non-arbitrary and consistent.

                1. No, I call dogmatic beliefs dogmatic. I define dogmatic as those impervious to evidence.

                  1. Evidence? What evidence? You said your preferences are subjective.

                    If there’s evidence, then this implies objective truth.

                    Also, if a standard of evidence is in play, then this implies that evidence matters, which implies that codification into law and government enforcement is not the end-all, be all standard by which assertions are evaluated.

                    However, you earlier claimed that codification into law is all that matters, and all else is dogma. You remember: rights only matter when they’re codified?

                    You should really make up your mind: subjective, or objective? might-makes-right, or evidence? Because no one else can keep track.

                    Of course, until I remind myself that the justification is really irrelevant, and you’re just pulling out whatever sounds good in the moment, for the issue at hand, whether or not it makes any coherent, consistent sense. Then, it all makes sense again.

                    1. evidence:

                      the available body of facts or information indicating whether a belief or proposition is true or valid.

        2. It was bound to fail, so it’s a stunt, hypocrite.

          It’s a mystery why you come here and mindlessly cheer lead for team blue, when you have no credibility and no discernible reasoning or debating skills. The only logical conclusions are that you’re being paid by someone who has no interest in persuading people to your positions, or you’re mentally ill. Or both. Or just maybe, you’re a foil sent here to coalesce opinion against the ridiculous arguments you espouse.

          1. Attempting to pass legislation is Congress’s job. Suing the president is a stunt and nothing else.

            1. So I guess you’re now arbitrarily taking the position that the judicial branch of government isn’t legitimate.

              Why am I not surprised at your lack of consistency and lack of reasoning skills?

  12. The lawsuit is the perfect vehicle for a Congress too cowardly to do what it should be doing – impeaching Obama.

  13. How much lawlessness are you willing to accept?
    Usurping the Constitution, constant end-run-around Congress, recess appointments when Congress is not in recess, IRS abuse of political enemies then destroying the evidence, NSA spying on everyone, voter fraud… the list is pages and pages long. Something has to be done or we don’t have a country worth defending.
    Even if you are a committed Leftist, the pendulum will eventually swing the other way, and the presidents set today will come back to bite you tomorrow.

  14. Don’t forget that the IRS acquiesced in this illegal action by the President.

    Does anyone believe that the IRS would be as deferential to a Republican President who decided, say, to delay enforcement of the 3.8% Net Investment Income Tax?

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