What if Boehner's Lawsuit is Dismissed for Lack of Standing?

Sam Baker takes an interesting look at one of the key questions with House Speaker John Boehner's lawsuit against President Obama: Whether or not the courts will find that he has standing to bring the lawsuit in the first place:


To establish standing, a plaintiff has to show an injury caused by the defendant. That's been a problem for members of Congress in the past. Courts have said their political disagreements aren't an injury for the legal system to address. On top of that, Congress has its own powers to employ when it thinks the executive branch isn't doing what it's supposed to.

House Republicans actually support the underlying policy decision made by the Obama administration, but they will claim that their "institutional interests" are at stake:

He didn't carry out the law as Congress wrote it, and Congress should be able to sue him for it

That argument is far from a slam dunk, especially given Boehner's claim that "no one else can challenge" the president's decision, a claim that locks Boehner into the position that nobody other than the House has been injured by the president's decision.

In theory, Boehner could argue delaying the employer mandate harms workers who would have otherwise gotten health insurance, but if he did that, then he'd have a tough time explaining why he supports the policy decision. Instead, he's got to convince the courts that even though he supports the president's decision, the House's institutional interests have been harmed because the president delayed implementation of a provision of a law that Boehner voted to repeal.

According to legal experts interviewed by Baker, that position is not particularly strong. Nonetheless, Boehner might nonetheless prevail, given how the court has bent over backwards of late to hand conservatives victories. But what if that doesn't happen, and Boehner's suit is dismissed for lack of standing? Well, here's what the legal masterminds of Boehner's strategy have to say about that:

Rivkin and Foley claim that a similar situation exists in their challenge to the president’s schedule for implementing parts of Obamacare — “without judicial review of the president’s suspension, there is literally no other way[,] short of impeachment,” to challenge President Obama’s actions.

That's not true—an injured party could bring a lawsuit—but the point here isn't about whether or not their claim is accurate, it's whether they believe it. And if they do truly believe what they say—and if Boehner believes it too—then we know what's next: The House impeaching President Obama ... for failing to implement Obamacare as quickly as they want him to.

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