Even though Speaker John Boehner has announced his intention to have the House sue President Obama for alleged nonenforcement of laws, don't expect that suit to come to a courthouse near you anytime soon. For now, the threatened litigation will remain a handy punchline for a president scornful of what he sees as a partisan stunt and a heavy promise from a speaker frustrated by what he sees as executive overreach.
In the long run, the suit faces constitutional and legal hurdles almost guaranteed to drag the process out for several years. These include the historic reluctance of the Supreme Court to referee spats between the other two coequal branches of government as well as the always-prickly question of whether Boehner and the Republicans have standing to file the suit.
Boehner has been exploring the possible suit for six months, disclosing it last month to his caucus. In a memo to his fellow Republicans, he argued that the House has standing if the full House authorizes the action, if "harm is being done to the general welfare," and if "there is no legislative remedy." Those skeptical of the suit have contended that the House has legislative remedies with its control of the purse strings and its impeachment power.
Boehner spokesman Michael Steel said the measure will first go to the Rules Committee for either a hearing or a markup. "At that point, it will be clear what specific action or actions the lawsuit will target. After that, we'll have a vote in the full House," he said. Republicans hope to have that vote in July.
After that, Steel said, the Bipartisan Legal Advisory Group (BLAG) "will work with the House counsel to file the lawsuit itself." He stressed that many decisions still must be made before any lawsuit can be crafted.
Despite the "bipartisan" part of BLAG's name, it is a group ready to do Boehner's bidding. The panel, created in 1993, consists of the speaker, the majority leader and majority whip, and the minority leader and minority whip—guaranteeing a 3-2 vote to file the suit.
Steel would not commit to a suit being filed before Labor Day. But he vigorously refuted suggestions that talk of the suit is a ploy solely designed to gin up the GOP base prior to the November elections. "That's simply not true," he said. The speaker also denied that motivation, telling reporters, "No. This is about defending the institution in which we serve."
Despite these protestations, that is exactly how the threatened suit is being treated by the White House. Even if a suit is filed, they believe it could not be decided during Obama's presidency. And they see it in purely political terms. To them, it has become a punchline, with Obama drawing laughs and cheers when he joked, "So sue me." In Minnesota last week, he said he may "in the heat of the moment" have challenged Republicans to take him to court. But, he added, "I didn't think they'd take it literally."
Republicans are not laughing, though, and are increasingly irritated by the president's response. "I just find it pretty troubling," said Steel. "This isn't something that should be treated flippantly."
This article appears in the July 7, 2014 edition of NJ Daily.