By Elise Viebeck - 07/16/14 06:00 AM EDT
House Republicans may try to court shop to find the best venue for their lawsuit against President Obama’s use of executive action.
While most legal experts believe the suit will ultimately be filed in D.C. district court, some think Speaker John BoehnerJohn BoehnerDem drops out of race for Boehner's old seat Conservative allies on opposite sides in GOP primary fight Clinton maps out first 100 days MORE (R-Ohio) might add additional plaintiffs to the House’s case in a bid for standing to sue elsewhere.
“This is a perfectly legitimate move for the Speaker to make if he wants to draw attention to what he sees as a matter of executive overreach before an election,” said Cornell University Law School Professor Josh Chafetz.
“I don’t think he will win before a judge, but I don’t think BoehnerJohn BoehnerDem drops out of race for Boehner's old seat Conservative allies on opposite sides in GOP primary fight Clinton maps out first 100 days MORE wants to win a lawsuit. He wants the publicity and the opportunity to make this argument before the American people,” Chafetz continued.
Boehner announced last week that his lawsuit would focus on Obama’s deferral of the requirement that larger businesses offer medical insurance under the 2010 healthcare law.
The “employer mandate” delay launched a now-common conservative critique that many of Obama’s executive actions have been outside the scope of his authority.
The White House denies this claim, saying such an attitude ignores the history of presidential power.
The House Rules Committee plans to meet Wednesday to hear testimony on Boehner’s resolution authorizing the lawsuit. The full chamber is expected to approve the measure during the last week of July.
But there are still many unanswered questions about the strategy Boehner’s office will pursue.
A spokesman for the Speaker declined to say whether a venue for the lawsuit had been decided.
“That will be a question for the litigation team once we pass the resolution and hire a litigation team,” Michael Steel wrote in an email.
It is also unclear how the team of lawyers would try to overcome the many legal hurdles that the planned lawsuit already faces.
Even if a judge admits that the House has standing, courts are limited in adjudicating problems they decide are political in nature.
“I would be surprised if any court would find that Boehner can bring this action,” said John Harrison, a professor at the University of Virginia School of Law.
“It will be hard for him to persuade the courts that the House experienced a harm from the president’s action that the Constitution authorizes them to sue over.”
Another administrative law scholar said even proving injury will be a “steep hill to climb.”
“The House would have to show that they voted for a law and the president failed to carry it out as required,” said Jeffrey Lubbers with American University Washington College of Law.
“Is that a harm that the courts would recognize? It’s difficult to say.”
Boehner’s action, which could take more than a year to proceed through the courts, comes amid pressure from the conservative base for the House to impeach Obama.
Strategists see the employer mandate lawsuit as a way to channel that energy away from impeachment, which is politically dangerous for the GOP.
There are reasons that Boehner may not want to file the suit in D.C., regardless of his wider strategy.
The D.C. Circuit Court of Appeals currently has more members appointed by Democrats than by Republicans, raising the likelihood that it would reject the House’s argument.
But in order to choose another venue, Boehner’s team would have to add another plaintiff with residency outside of Washington, raising another set of questions about standing.
Still, some experts say there are ways for the House to thread the needle.
Elizabeth Price Foley, a professor at Florida International University College of Law, will argue before the Rules Committee that the House has no adequate recourse against Obama’s actions other than its lawsuit.
This claim, if a judge agrees, could help establish legislative standing in the case.
“What Congress wants, regarding the Affordable Care Act, is for the law to be faithfully executed as written,” Foley will say, according to prepared testimony released Tuesday by the committee.
“Repealing the ACA wholesale, impeaching the president, or cutting off appropriations for unrelated government programs will not ‘remedy’ the problem of presidential nullification of the ACA.”