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Boehner finally found a lawyer to sue Obama

Saul Loeb / AFP / Getty

  1. On Tuesday, Politico's Lauren French reported that House Republicans had hired Professor Jonathan Turley of George Washington University Law School to handle their lawsuit against President Obama.
  2. The lawsuit will focus on the administration's delay of Obamacare's employer mandate.
  3. This comes after earlier reports (from Politico) that two successive firms retained by the House GOP to sue Obama had ended up quitting the case.
  4. Recently, Boehner has been considering expanding the lawsuit to include the executive action on immigration Obama is planning to soon take.
  5. This will be the second time Turley has sued Obama on behalf of members of Congress — the first time, though, he was working with Dennis Kucinich.

Turley is a longtime critic of executive power

The long-delayed, historically unprecedented House of Representatives lawsuit against President Obama now finally seems to be moving forward. After two firms previously hired ended up dropping out due to pressure from their clients, Politico's Lauren French reported Tuesday morning that the House has hired Professor Jonathan Turley of George Washington University Law School.

Turley voted for Obama in 2008, but his involvement in the suit is no surprise. He's been a longtime critic of executive power throughout several administrations, including this one. Recently, he's criticized various actions taken by Obama in Congressional hearings, and has been one of the few legal scholars arguing that Boehner's prospective lawsuit could succeed.

Furthermore, he's actually sued Obama before — back in 2011, he and ten Congressmen led by Rep. Dennis Kucinich (D) sued the president over his invasion of Libya. They argued that Obama's failure to seek Congressional authorization violated the War Powers Act — but their suit was thrown out by a district judge because they lacked "standing" to sue in federal court.

"Standing" remains the biggest problem with Boehner's lawsuit

There's real division among legal experts about whether Obama had the authority to completely delay a major tax regulation — the employer mandate — for a year. Yet this suit might not settle the question, for the same reason the Turley-Kucinich Libya lawsuit was thrown out — lack of standing.

Essentially, courts can only step in to adjudicate specific cases — cases where the plaintiff has experienced some harm caused by the defendant. Only then does that particular plaintiff have "standing" to sue in federal court — and only then does the court adjudicate the merits of the case. In contrast, if the court finds the plaintiff does not have standing, they dismiss the case without ruling on it.

In the past, the vast majority of lawsuits brought by members of Congress against the president on policy issues have been dismissed because they lacked standing. As Lyle Denniston of the National Constitution Center wrote, "Time after time, when members of Congress have sued in the courts, because the Executive Branch did something that they believe frustrated the will of Congress, they have been met at the door of the courthouse with a polite refusal to let them in." The courts also tend to be skeptical of these suits because Congress has constitutional means by which it can check the president's power on its own — by passing a new law, using the power of the purse to cut off funding, or through impeachment.

Conservative lawyers have crafted various arguments to justify why the House does have standing to sue over the employer mandate, and Turley will surely have new arguments of his own. We'll see how they play out in court once the lawsuit is actually filed. Check out Vox's full explainer on the Boehner lawsuit for more.