In it, but not of it. TPM DC
The move appears to be unprecedented and is already facing allegations from Democrats of political gamesmanship. Experts say the House of Representatives has never before endorsed a lawsuit against a President. Boehner declined to say which executive actions he'll challenge when asked Wednesday, nor did he get specific in his memo to colleagues declaring his intentions.
"We elected a president, Americans note; we didn’t elect a monarch or king," Boehner wrote.
Norm Ornstein, a congressional historian at the American Enterprise Institute, said "there is no precedent that I know of for Congress suing over executive orders," but he noted that there have been lawsuits by ad hoc members of Congress against several presidents.
The first question is whether the House has standing to sue, given that the Democratic-led Senate won't go along with a lawsuit. Precedent for that is mixed. In the 1997 case Raines v. Byrd, the Supreme Court ruled that six congressmen challenging a presidential line-item veto lacked standing to sue because they couldn't prove injury. But in 2013, when the House majority sought to stand up for the Defense of Marriage Act, the Supreme Court granted standing, warning that it "poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress' enactment solely on its own initiative and without any determination from the Court."
A senior Republican aide posited the DOMA precedent and a favorable House vote should be enough to ensure that the GOP has its day in court against Obama's executive actions.
David Rivkin, a former Justice Department lawyer under Presidents Ronald Reagan and George H. W. Bush, made a similar case earlier this year when exploring legal options to stop Obama's executive orders.
"If congressional standing is denied in such cases, there will be no other way to check such presidential usurpation short of impeachment," he wrote in a joint op-ed with law professor Elizabeth Price Foley. "As the court observed in Clinton [v. City of New York], the president does not have 'unilateral power to change the text of duly enacted statutes.'"
If the courts grant standing, the next question is whether such a legal challenge has merit to succeed. The answer is unknowable without specifics on which actions would be challenged and under what legal grounds, something Boehner did not reveal during a news conference or in his memo. Republicans have raised hell about the president's executive moves to tweak Obamacare, grant some leniency to young undocumented immigrants and propose rules to limit climate-warming pollution from coal-fired power plants.
"I don't think threats down from the White House that 'I can do by executive order what I want to do' are particularly helpful. Those things chill legislative progress. So if you want to legislate, you don't threaten, you don't cajole, you actually bargain," Rep. Tom Cole (R-OK), a Boehner ally and deputy majority whip, told reporters. "And there's been very little of that."
Asked by TPM which executive orders he finds most objectionable and deserving of a challenge, Cole mentioned the 2012 Deferred Action for Childhood Arrivals program, or DACA, to give young undocumented immigrants temporary authorization to live and work in the U.S.
Politically the issue is tricky for Boehner. It comes on the heels of the shocking defeat of House Majority Leader Eric Cantor (R-VA) in a Republican primary, followed by the election of a more conservative GOP leadership team. Thirst for a confrontation with Obama is rising and Boehner feels pressure to quench it. It remains to be seen whether this lawsuit will satisfy Republicans' hunger or whether it will empower the fervent anti-Obama wing of the party which has toyed with the idea of impeaching the president.
"This is not about impeachment," Boehner told reporters.
The White House and Democrats fumed the lawsuit was a partisan stunt to gin up the Republican base and waste taxpayer money.
"Voters will punish House Republicans for this latest example of putting partisan attacks ahead of middle class progress just like they did when Republicans over-reached in the '90s," said Rep. Steve Israel (D-NY), the head of House Democrats' election arm.