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A most frivolous lawsuit

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Can one house of Congress sue the president?

That legal question will be answered at some point after the U.S. House voted 225 to 201 on July 30 to authorize Speaker John Boehner (R-OH) to sue President Barack Obama for delaying for one year implementation of the employer mandate under the Affordable Care Act (ACA) to provide employee health care coverage.

This vote was almost entirely along party lines. Every Democrat voted against the resolution and they were joined by five Republicans, none from Michigan. For the rest of the House Republicans, their vote showed a hatred of Obama so intense that they are willing to file a frivolous lawsuit of no legal merit, which stands a good chance of backfiring on them politically, at a cost to taxpayers likely to run into millions of dollars.

The legal barriers to this political publicity stunt are significant. We begin with the question of whether House Republicans have standing to sue in the first place. They must show an injury caused by Obama’s delay in implementing the employer mandate. This appears to be an impossible burden, when the House has not only voted to delay the employer mandate, but also voted 54 times to repeal the ACA.

These votes occurred when the Republicans knew that all of these bills would be dead on arrival in the Democratic-controlled Senate. Under these circumstances, how can the Republicans honestly claim that this delay harms the House’s institutional interests? It should also be noted that House Republicans didn't object in 2006 when former President George W. Bush delayed the enrollment deadline for the Medicare Part D prescription drug benefit.

This leads us to question whether House Republicans are able to state a claim for which relief can be granted or if federal courts even have subject matter jurisdiction. The executive branch is in charge of enforcing the law and plans to do so, only a year later than originally planned. This is not a failure to faithfully execute the law. What we really have here is a political disagreement, and in the past the courts have ruled that such disagreements aren't injuries for the legal system to address.

As such, this lawsuit may very well be thrown out of court based on the pleadings, without the case ever going to trial.

In the meantime, the Republicans seem determined to shoot themselves in the foot. Polls have found the lawsuit to be unpopular, with one showing Americans oppose it by 57 to 41 percent.

House Minority Leader Nancy Pelosi (D-CA) said the lawsuit is the first step to impeaching Obama. While Boehner and other top Republicans claim that impeachment is off the table, such extremists as former Republican vice-presidential candidate and Alaska Gov. Sarah Palin and Rep. Steve King (R-IA) have called for impeaching Obama.

Impeachment is even more unpopular than the lawsuit, with polls finding Americans oppose it by a two-to-one margin. Democrats have used the lawsuit and the threat of impeachment to raise millions of dollars in campaign funds.

We won’t see the lawsuit get underway until after Labor Day. It could result in political suicide for the Republicans in the midterm elections, costing them both houses of Congress.

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