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Is House lawsuit against Obama likely to succeed?

Lyle Denniston, the National Constitution Center's adviser on constitutional literacy, says the House Republicans face a big hurdle in their lawsuit against President Obama that could prevent the case from ever getting to a court.

The statement at issue:

"This isn't about Republicans versus Democrats; it's about the Legislative Branch versus the Executive Branch, and above all protecting the Constitution…. The current president believes he has the power to make his own laws – at times even boasting about it… If this president can get away with making his own laws, future presidents will have the ability to as well. The House has an obligation to stand up for the Legislative Branch, and the Constitution, and that is exactly what we will do."

– Rep. John Boehner, Ohio Republican and the Speaker of the U.S. House of Representatives, in a statement July 10 announcing that the House will be asked to authorize "legal action over President Obama's unilateral actions on the health care law's employer mandate in 2013."

We checked the Constitution and…

The Constitution's Article III has a simple requirement that must be satisfied by any lawsuit that is filed in federal courts, and it is a make-or-break requirement. If the lawsuit does not involve a genuine "case or controversy," under Article III, a federal court simply has no authority to decide it.

That will be the biggest legal hurdle that the House of Representatives will face if it goes ahead with a lawsuit against President Obama, claiming that he had no power last year to order a one-year delay in the new health care law's mandate that employers with 50 or more employees provide comprehensive health care coverage for their workers.

Although the Speaker of the House had been talking about such a legal challenge for a few weeks, he settled on the actual strategy by having his lawyers draft a resolution that the House will be asked to pass, permitting a lawsuit to proceed.  He and other Republicans have been protesting a number of actions by President Obama, claiming he had no power to take those actions, but only the protest about delaying the employer health care mandate would be authorized in the planned lawsuit.

It would either be a lawsuit by the House itself (the Senate, controlled by Democrats, would not allow that chamber to join in), or a lawsuit filed by someone else, with the House intervening to represent its own institutional interests. The idea that a private individual or organization might be the one to start the lawsuit was apparently a concession that maybe that approach would have a stronger chance of surviving in court.

Under the House resolution, the lawsuit would be filed under what is called the Declaratory Judgment Act. That law requires – in a bow to Article III – that the case must be an "actual controversy" that a federal court can decide. The end-result of such a case is a formal court declaration of law, finding in favor of one side or the other's legal argument in the controversy, but it is not an advisory opinion as such. A declaratory judgment is usually pursued when there is no underlying dispute over the facts, and thus it can move more speedily to a conclusion.

But, because of Article III's requirements, there are three things that an individual or institution must prove – up front – before such a lawsuit could go forward in federal court. The suing party must first show that the other side has caused it an "injury in fact" – that is, a genuine harm, not a fanciful or theoretical harm. Next, there has to be proof that the other side caused that injury. And, finally, the injury must be of a kind that the court can remedy by ruling in favor of the suing party.   Those three requirements are what lawyers and judges refer to as "standing" requirements – that is, a right to sue in federal court, in keeping with Article III.

The courts over many decades have been very reluctant to allow themselves to be drawn into political conflicts between the other two federal branches, especially if the fight results in one side mainly being disappointed that it did not get its way in the pulling-and-hauling of inter-branch dealings. So, members of Congress almost never have been allowed to sue in federal court to try to win something that they had failed to get through normal legislative action.

If The House v. Obama lawsuit is, as is now expected, focused solely on the one-year postponement of the Affordable Care Act's employer health plan mandate, it will be necessary for the House's lawyers to show that the institution was injured by the postponement. (That may be more difficult than it at first seems because the court will be made aware that, at one point in the history of the Affordable Care Act, the House itself had voted for a one-year delay of that very same mandate; that did not happen until Obama chose to do it through an order by the federal Treasury.)

If a private party is to bring the lawsuit, to be joined by the House's intervention, it might be somewhat easier to prove injury from the mandate's postponement. An individual worker, for example, could be found to sue, making a claim that the postponement deprived that worker of a health-care benefit that Congress had granted in the health-care law. That is a more realistic argument than a claim of injury to the House.

The House as an intervening party would be free to claim its own constitutional injury, on the theory that the one-year postponement did not follow the specifics of the mandate as it was passed by Congress. But, if the lawsuit is focused on the claim of a private individual, would the court even bother to rule on whether the House itself had shown an injury to its prerogatives?

The potential outcome of such a lawsuit, under the Declaratory Judgment Act, would be a court ruling that President Obama, legally, had no power to impose that one-year delay. Could the court order Obama, or one of his Cabinet officers, to put the mandate into effect immediately? Is that what would "faithfully execute" the law, in the words of Article II's description of the president's duty as head of the Executive Branch?

It would be a bold decision for a court to do that. And because of that, a court might well hesitate to step in, choosing instead to rely upon what courts have called the theory of the "political question." Under that theory, some issues in federal government policy are considered to have been assigned by the Constitution exclusively to the political branches – Congress and the White House – so courts will not let themselves be drawn into the middle of those kinds of policy disputes.

All of this discussion, of course, depends upon taking seriously the planned House of Representatives lawsuit when, in fact, the pursuit of that legal action may actually be somewhat more realistically understood as a way to embarrass the White House in a congressional election year.

Philadelphia's National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center's blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America's history and a variety of expert contributors.