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John Boehner's Lawsuit Against Obama Proves the President Isn't Lawless

Brendan Smialowski/Getty Images

This is how Republicans destroy their own narrative of the lawless Obama presidency: with a faceplant.

When House Speaker John Boehner officially announced that he planned to sue President Obama, he was absolutely clear about one thing. He didn't know what the bill of particulars would be, or really anything other than that he would take Obama to court. But he knew that the scope of Obama's lawlessness was widespread enough that it merited significant legal action. This wasn't a picayune disagreement with the executive, but a pattern of behavior that had upset the balance of Constitutional power at the expense of Congress.

"I believe the president is not faithfully executing the laws of our country, and on behalf of the institution and our Constitution, standing up and fighting for this is in the best long-term interest of the Congress," Boehner said.

His memo to House Republicans in anticipation of the lawsuit listed a whole range of policy areas across which Obama had "strain[ed] the boundaries of the solemn oath he took on Inauguration Day"—"from health care and energy to foreign policy and education."

With so many instances of law breaking to choose from, one got the sense that he was working on a fairly meaty complaint, even if the House stood little chance of winning in court.

But on Thursday evening, Boehner laid down his cards. All but one were blank. It turns out Obama's vast and indisputable misconduct is limited to one act of enforcement discretion: his decision to delay implementation of an Affordable Care Act's requirement (one Republicans despise) that businesses with more than 50 employees provide their workers health insurance or pay a penalty.

"Today we're releasing a draft resolution that will authorize the House to file suit over the way President Obama unilaterally changed the employer mandate," Boehner said in a statement. "In 2013, 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. That’s not the way our system of government was designed to work. No president should have the power to make laws on his or her own."

It's actually pretty likely that the provision in question will go into effect before Boehner's legal challenge is resolved one way or another. At the end of the day, by his own reckoning, Boehner may ultimately have zero grounds upon which to sue the president, whose brazen lawlessness Republicans treat as self-evident.

I say "by his own reckoning" because it's possible that Boehner omitted something from his coming suit for political reasons—like Obama's deferred action program for immigrants brought to the country as children. But if Boehner's not so jealous of Congress' powers that he's willing to extend his legal theory everywhere it applies, it's really just an admission that he values the lawlessness talking point more than the constitutional principle he claims is at stake. The problem is that by confronting Obama on such narrow grounds, he's completely undermined the talking point.

The good news for Boehner is that he settled on a subset of executive action that would be hard for the Obama administration to defend in court if a court were to grant the House standing. University of Michigan professor Nicholas Bagley, who's my lodestar on issues of administrative law like these, has explained many times that the administration's unilateral decisions to delay implementation of Obamacare push up against the limits of its legal authority.

If Boehner were to be granted standing—and then win—it would alter the balance of power between Congress and the executive in an unprecedented way. A sharp new arrow in Congress' quiver, and a legacy-making victory for a speaker whose tenure has been marked by gridlock, acrimony, and errors, mostly of his own making. That this legacy would be procedural in nature, and born of confrontation, is an amazingly appropriate testament to him and this majority.

But that's a story for another day. Today's story is that the GOP has spent weeks and weeks accusing Obama of unbridled lawlessness, when they didn't really have the goods. That it unfolded against a backdrop of Republicans demanding Obama fix a child-migrant crisis at the border without providing him the legislative means to do so only underscores the point. Boehner desperately wants to avoid getting ensnared in another maximalist showdown with Obama, just to satisfy the hardliners in his conference. Some of them want to impeach a president they've dubbed an outlaw. So he set out to address their grievances in a different way. But in so doing, he actually just refuted them.