House Republicans announced Tuesday that they will be laying the groundwork next week for their lawsuit against President Barack Obama over his perceived abuse of executive authority by having experts spell out the case against the president. Considering the fact that the midterm elections are coming up and complaints about Obama use of power are nothing new, one must question whether Republicans are actually serious or more interested in cheap political points.
Obama noted in an interview last week with CNN that when Speaker John Boehner announced the House would be suing him, Boehner never specifically said what he was objecting to and called the upcoming lawsuit "a stunt." This is important because according to Article III of the Constitution, plaintiffs are required to identify a specific "case or controversy" before a federal court can hear their case. This means that no one can sue the president simply for a vague disagreement over his use of executive orders. Without a specific objection, a federal judge will just laugh the suit out of court and prove Obama correct.
If Republicans are serious about moving forward, they need to clear several hurdles and narrow the scope of the suit to have any chance at success. The good news for House Republicans is that the lawyers advising them, David B. Rivkin, a conservative Washington attorney, and constitutional-law professor Elizabeth Price Foley, believe there are four ways the GOP can better its odds in the lawsuit. The first way is to signal the "genuineness of the institutional injury," and explicitly authorizing the lawsuit by a majority vote of the House. The suit should then target waivers or exemptions that do not injure a particular person or group enough to enable outsiders to bring a case themselves, calling them "benevolent suspensions of law." They cite the health law delays under the Affordable Care Act (ACA) as examples. Next, Republicans must argue going to the judiciary is a last resort. And finally, the alleged injury should be framed "as a nullification of legislative power."
One good potential target in the lawsuit is the employer mandate in the Affordable Care Act. Obama has unilaterally delayed enforcement of the mandate twice in the last two years in response to business concerns over its potential impact. This is an example of a "benevolent suspension of law" and Republicans could cite their 50 attempts to either repeal or delay the health care law in their argument the lawsuit is a last resort. In addition, the fact that Obama acted unilaterally to change part of the law could fall under the nullification of legislative power category.
These steps may give the House a fighting chance in its lawsuit and deal Obama a huge blow to not only his use of executive power, but his signature legislation as well. The next question is whether the courts will resolve this before Obama is out of office and relaxing on a beach in Hawaii. Given the fact legal matters often take years to resolve, this appears highly unlikely. So what is the next step if there is one?