Threatened Lawsuit Against Obama Viewed With Both Gravitas and Humor

Republican leaders plan to have the House vote in July to sue the president for overreach, but a court case could drag on for years.

WASHINGTON, DC - MARCH 14: US President Barack Obama (R) walks with Speaker of the House John Boehner (R-OH) after a luncheon at the US Capitol, on March 14, 2014 in Washington, DC. Speaker Boehner hosted a lunch for Prime Minister Enda Kenny of Ireland in honor of St. Patricks Day on Sunday. (Photo by Mark Wilson/Getty Images)
National Journal
George E. Condon Jr.
July 6, 2014, 4:42 p.m.

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.”

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