

(Photo by Chip Somodevilla/Getty Images)

On Tuesday, Politico reported that the House hired Jonathan Turley, a George Washington University law professor, to assist in their attempt to sue President Obama. Turley is now the third lawyer hired by Speaker John Boehner (R-Ohio) since the House passed a resolution (H. Res. 676) authorizing the lawsuit against Obama in July. The previous two law firms quit before any suits were filed.

Boehner’s lawsuit will seek to challenge Obama’s unilateral decision to delay the enforcement of the Affordable Care Act’s employer mandate requiring all large businesses to provide employee insurance starting in 2014. Boehner argues “the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it.”

Congress has long struggled to counter growing executive power. Boehner’s lawsuit seems to be at a disadvantage according to legal experts, who cite countless historical examples of failed congressional lawsuits. While the merits of this case are unlikely to hold up to legal challenge, more generally, Congress has a structural disadvantage with using the courts as a means to thwart executive action. We outline the challenges that Congress faces when pursing legal challenges to executive actions.

1. To sue on behalf of Congress, one must have congressional authorization.

An individual member of Congress is limited in his or her ability to sue the president on behalf of Congress. While members may sue if they sustain a private or personal injury (Powell v. McCormack), a member suing on behalf of Congress must have explicit congressional authorization if he or she is claiming to have suffered institutional harm (Raines v. Byrd). Current precedent requires authorization from either the House or Senate; therefore potential plaintiffs must garner the support of at least a majority in one or both chambers before they can attempt to sue the president. The authorization granted to Boehner by H. Res 676 should be enough to meet this requirement.

2. Congress must demonstrate that executive action harmed Congress.

Any lawsuit needs to have basis in “imminent, concrete, and particularized” injury. In the context of inter-branch conflicts, this means that the president would have had to act in such a way that his executive action would have undone a previous legislative vote of Congress (Harrington v. Bush); precedent describes this as “vote nullification.” Such an executive action must clearly violate provisions outlined in the Constitution.

It is extremely difficult for Congress to establish it has been institutionally harmed. Boehner argues that Obama unconstitutionally altered the ACA by extending deadlines — thus usurping the Article I legislative powers of Congress. Obama counters that this action falls within his broader executive authority to faithfully execute laws.

3. Congress must show that it cannot remedy the situation without involving the courts.

The courts have made it evident through precedent that they do not want to settle inter-branch disputes that can be remedied through legislative action. Congress has to establish that it cannot stop or remedy executive actions through legislation. Additionally, Congress must show it has made a previous attempt to address the executive action (see Goldwater v. Carter and Kucinich v. Obama). Evidence must be presented that any failures are not simply a result of an inability to overcome political opposition to potentially effective remedies.

Although Congress has made no attempt to legislatively reverse Obama’s deadline changes, Boehner will likely argue that any such attempts would be unable to effectively constrain executive implementation of the ACA. It is unlikely that courts will be swayed by such an argument.

4. There must be a clear remedy that the courts can extend to Congress

In the event of executive overreach, there must be clear remedies that the courts can provide. For example, President Truman issued an executive order to seize and operate steel mills in the face of a strike during the Korean War. The courts remedied this executive action by issuing an injunction to halt Truman’s unilateral overreach (Youngstown Tube and Sheet Case).

It is unclear what remedy would be available to the courts in Boehner’s case. An immediate order to enforce the mandate would be logistically infeasible. If the case were to be heard by the courts after January 2015, the mandates would already be in place.

Although Boehner’s lawsuit is not the perfect vehicle to counter Obama’s unilateral actions, the larger point remains that legal action is an ineffective means for Congress to check presidential power. Regardless of the issue, Congress will have a difficult time adhering to the legal requirements outlined above. If Congress wants to effectively address the growing power of the president, it will take bipartisan cooperation by members of both chambers of Congress. A lawsuit authorized by one chamber and supported by members of only one party will not suffice. In short, don’t expect Turley and Boehner’s lawsuit to succeed anytime soon.

Michael S. Lynch is an assistant professor of political science and Rachel A. Surminsky is an undergraduate student at the University of Georgia.