House Speaker John Boehner is poised to embark on an unusual constitutional experiment that could test the ability of Congress to defend its legislative power—by taking the Obama administration to court.
Republicans say delays of Obamacare deadlines, No Child Left Behind law waivers and other White House actions are executive abuses. And they want the judiciary to stop them, or at least declare the president's actions unconstitutional.
It is not clear, however, whether Mr. Boehner's proposed lawsuit stands a realistic chance of success.
The good news for the House GOP is that courts have never said a congressional chamber may not sue the president for usurping legislative powers. The bad news is that courts have never agreed to take up such a case either. And scholars say they are skeptical a court will make such a move soon.
Mr. Boehner is expected to bring to the floor a resolution authorizing the suit as early as this month, but hasn't indicated which actions would be targeted. "This is about preserving and protecting the Constitution, so it's critically important we get it right," Mr. Boehner's spokesman said Tuesday.
The biggest immediate hurdle for Mr. Boehner would be getting the legal right to bring the suit.
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The lawyers suggest four ways the GOP can better its odds. First, to signal the "genuineness of the institutional injury," the lawsuit "should be explicitly authorized" by a majority vote of the House. Second, the suit should target waivers or exemptions that don't injure a particular person or group enough to enable outsiders to bring a case themselves. They cite health law delays as examples of such "benevolent suspensions of law."
Next, Republicans must argue judicial intervention is a last resort. And finally, the alleged injury should be framed "as a nullification of legislative power."Read the full story HERE.
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