When the U.S. House of Representatives voted 225-201 on Wednesday to authorize Speaker of the House John Boehner to sue President Barack Obama, it marked the first time in American history that a chamber of Congress has approved a lawsuit against the president.
Though the party-line vote has already made plenty of headlines, many pundits believe the threat of a lawsuit will soon fade into the background.
But Boehner is determined to press on, which raises a few questions about the lawsuit itself, and how suing a president actually works.
Why is Boehner suing Obama?
The speaker is suing the president because he and his fellow Republicans say Obama abused his power to issue executive orders.
That has long been a complaint of Republican representatives, but this lawsuit will focus specifically on an executive order that allows businesses to wait an extra year before they must offer healthcare to employees or pay a fine for not doing so.
Republicans don't like that employer mandate, which is part of Obama's own Affordable Care Act ("Obamacare"), so it may seem unusual that they oppose the extension of the deadline. But they argue that Obama is overstepping his bounds by unilaterally making adjustments to the legislation, and they claim that Obama is intentionally postponing some of the law's most unpopular requirements to make himself look better.
Some Democrats say that Boehner was looking for any excuse to sue Obama, and that Republicans are using the lawsuit to set the stage for an eventual impeachment attempt.
Can you even sue the president?
Sure. Presidents can be sued for actions they take as executives. That said, they have virtual immunity from civil lawsuits that claim an executive decision inflicted personal damage on someone else.
But Boehner will struggle even to bring his case to trial, let alone win.
Here are the problems he'll face:
- Courts have traditionally been uncomfortable getting involved in disputes between the legislative and executive branches of government, legal scholars say.
- Defining what constitutes a viable executive order is tricky, and courts may not want to take on that issue.
- There is some debate over whether the Senate will also have to approve the lawsuit for it to move forward, according to The Wall Street Journal. If the suit requires the Senate's go-ahead, that would be a difficult task. The Senate has a Democratic majority, unlike the House.
By the way, though this suit has been billed as a battle between Boehner and Obama, the president is not likely to be named in the litigation. Health and Human Services Secretary Sylvia Mathews Burwell, a member of Obama's cabinet, will probably be the official defendant, according to The Wall Street Journal.
What will the lawsuit cost?
The price tag for Boehner's litigation is unclear, because the case has yet to be filed, according to The Hill. There is no timeline for the lawsuit, and lawyer contracts have not been signed.
Democrats have demanded a cost figure for the impending lawsuit, but Republicans have declined to provide a number.
What's next for this lawsuit?
The House will now consult lawyers about the final wording of the lawsuit, which Republicans reportedly aren't planning to file for at least another month. Then the five members of the Bipartisan Legal Advisory Group, which consists of the three top House Republicans and the two top Democrats, will vote on whether it can proceed, according to National Journal.
After that, a federal judge will have to decide whether the case can go to trial.
If there's a trial, would Obama have to testify?
Even if there is a trial, neither Obama nor members of Congress are likely to testify, according to Laurence Tribe, a constitutional law professor at Harvard Law School who once taught Obama. If the lawsuit did make it to trial, he said, "neither the president nor any members of Congress would have to testify. Indeed, no such testimony would even be relevant."
Can Boehner win?
The speaker needs to prove that Obama's executive order damaged Congress in some way. Legal experts are collectively undecided on whether Boehner has enough evidence to go to trial, let alone win, but it all rests on whether he can prove that the president impeded the House's ability to do its job.
Members of Congress who have sued presidents in the past have often been told they do not have legal standing to do so, so Boehner's chances aren't good.
What does this mean for American politics?
It means that the extreme bipartisanship in Washington is not going away.
Every Democrat in the House voted against bringing the suit, and all but five Republicans voted in favor.
Boehner said that Obama "has circumvented the American people and their elected representatives through executive action, changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold," in an op-ed he wrote for CNN. Obama dismissed the lawsuit as a "political stunt."
But if Boehner does manage to take this suit to trial and win, it could weaken the power of the presidency, give Congress greater ability to challenge executive orders, and empower courts as the arbiter of disputes between the other two branches.
Tags: Barack Obama, CONGRESS, LAWSUIT, POLITICS, PRESIDENT, SUE, U.S., US & World