Many analysts viewed Boehner’s announcement of the lawsuit as a way to placate conservatives. What happened to that GOP lawsuit?

It takes about 10 minutes to walk from the Capitol to the federal courthouse just down the hill, but House Republicans haven’t managed to make that trip in the four months since they announced they’d be suing the president.

House Speaker John Boehner came out swinging hard last June when he announced that his chamber would take President Barack Obama to court. The suit, charging that the president grossly exceeded his constitutional authority by failing to implement portions of the Obamacare law, was billed as an election-season rallying point for aggrieved Republicans. But days before the midterms, the House’s legal guns seem to have fallen silent.


Lawyers close to the process said they originally expected the legal challenge to be filed in September, but now they don’t expect any action before the elections.

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Some attribute the delay to electoral politics — suggesting that Republicans were worried it could rile up the Democratic base — though the GOP is mum on why the suit has yet to be filed.

Whatever the reason, the delay means the core of the suit could effectively be moot before the Obama administration even has to respond to it in court. The case was expected to center on an employer mandate provision that Obama twice delayed but is now set to kick in for many employers on Jan. 1.

“I thought this was a constitutional crisis and the republic was in jeopardy because Obama overstepped his bounds. Now, they can’t even get around to filing it?” asked former House Counsel Stan Brand, a Democrat. “It, to me, emphasizes the not-serious nature of it.”

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A spokesman for Boehner said the date for filing the litigation remains up in the air. “No decisions on timing at this point,” spokesman Kevin Smith said Friday. He declined to comment on speculation about the reasons for the delay.

Some Democrats suspect the filing has been delayed because Boehner’s announcement of the suit over the summer backfired to some extent, spurring fundraising by Democratic committees. Raising the issue again so close to the election could agitate those in the president’s base who view such a lawsuit as disrespectful and part of an effort to delegitimize Obama.

And Democratic consultant David DiMartino said it could push an even wider swath of the country away from the GOP.

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“I think it goes beyond the Democratic base in terms of the Americans who thought this was beyond the pale,” he argued. Republican leaders “are really good at finding really efficient ways to alienate huge swaths of the American public, and this is one of those issues.”

Some conservatives, however, see the suit’s postponement until after the election as important to rebutting charges that it’s only about politics.

“After the election, it ought to garner more serious commentary, evaluation and judicial review,” said Todd Gaziano of the Pacific Legal Foundation. “It can have some very helpful consequences for a principle that I think liberals and conservatives should both be concerned about, and that is the president’s unilateral authority to rewrite a statute in dozens of ways.”

In addition, Republicans might not be looking to change the subject while Obama’s approval ratings are so low. His poor image has only suffered further from a series of bad-news stories in recent weeks, including the rise of the Islamic State of Iraq and the Levant and the unexpected diagnoses of Ebola in the U.S. In the process, Obamacare has slipped from the top of the list of GOP arguments for why Democrats need to be kicked out of office.

“I think the lawsuit was always more about politics than principle,” said Matt Parks, a politics professor at New York’s King’s College who is critical of Obama’s executive actions but opposed to suing over them. “The Republican midterm strategy, it seems, even going back to the beginning of summer, is to let the president’s unpopularity sink the Democratic ship. Therefore, they’ve been risk averse and are trying to avoid any rhetorical or political missteps.”

By not filing the case, he added, “The lawsuit will not be that all-caps, e-mail blast rallying point for Democrats in this campaign.”

While early on Boehner said that the suit would focus on a delay Obama ordered in enforcement of the law’s employer mandate, sources say lawyers are now considering expanding the case beyond the originally announced subject because the mandate is likely to soon start to go into effect and because there might be more effective targets.

The employer mandate requirement is set to kick in for large employers in January, although the administration says it won’t enforce the requirement for employers with 50 to 100 employees until 2016. The federal government ordinarily has 60 days to file a formal answer to litigation, meaning that much of the mandate is likely to be in effect by the time anyone has to address the suit in court, let alone by the time the suit is resolved.

The House resolution passed in July authorizing the lawsuit allows litigation on any issue related to Obamacare. Some conservative lawyers would like to see the suit broadened from the employer mandate to cover other aspects of the health care law. Others would like to see litigation aimed at whatever executive action on immigration Obama may take after the election.

“Another fringe benefit of the suit not being filed right now is the authorization might be amended,” Gaziano said.

Some of the delay may be related to an unexpected hurdle the litigation hit last month when the first lawyer the House hired to pursue the case, David Rivkin of Baker Hostetler, backed out. Sources say his firm came under pressure from health care-related clients wary of being represented by a firm perceived as working to unravel Obamacare. Rivkin declined to comment on the episode.

Following Rivkin’s exit, the House tapped a former lawyer in President George W. Bush’s White House, Bill Burck, to take over the case. He did not respond to an e-mail seeking comment for this story.

Many analysts viewed Boehner’s announcement of the lawsuit as a way to placate conservatives in advance of the election and to dampen talk about impeachment of the president. The delay in its filing has some predicting the speaker will end up taking flak over the handling of the threatened suit.

“Boehner promised the right wing of his party red meat with this thing and he ended up serving them cauliflower,” DiMartino said.