Boehner v. Obama: House lawsuit brings new twist to familiar conflict

President Barack Obama walks with Speaker of the House John Boehner, R-Ohio, after a luncheon at the U.S. Capitol, on March 14, 2014 in Washington, D.C. Mark Wilson, Getty Images

U.S. presidents dating back to George Washington have tested the limits of executive authority, and Congress and the courts have done their parts historically to keep the executive branch in check.

However, House Speaker John Boehner's plan for the House General Counsel to file a lawsuit against President Obama's executive actions puts a relatively novel spin on the idea of checks and balances.

"Historically, when presidents have overstepped, or when presidents have been accused of overstepping their authority, those lawsuits are filed by actual plaintiffs who have been harmed" by executive actions, John Hudak, an expert on presidential powers from the Brookings Institution, said to CBS News. "One branch suing another branch is a very odd approach to this."

When he announced his plan last month, Boehner suggested Mr. Obama's executive actions -- in areas like health care, immigration and foreign policy, to name a few -- have steered into dangerous territory.

"On one matter after another during his presidency, President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce - at times even boasting about his willingness to do it, as if daring the America people to stop him," Boehner said, warning that Mr. Obama was close to assuming "king-like authority."

Indeed, Mr. Obama has boasted about wielding his "pen and phone" powers in the face of Republican obstruction in Congress. This, however, is nothing new. In 1987, tired of dealing with obstructionist Democrats, the Reagan administration announced its plans to act unilaterally on social issues like pornography and abortion.

"With a hostile Congress that doesn't show much sign of coming toward us on some of these issues, it behooves us to take the initiative when we can take it," Reagan's chief domestic policy adviser Gary Bauer said at the time.

"President Obama has engaged in issuing executive orders and taking executive actions generally in some of the same ways other presidents have done, dealing with issues of federal contracting, federal personnel matters," Hudak said.

But just as there's precedent for presidents exercising broad executive authorities, there's also a history of pushback in the courts. When presidents attempt to take actions that "wade into areas that are a bit more controversial than standard practice, the system of checks and balances kicks in," Hudak explained.

In 1952, the Supreme Court struck down Harry Truman's attempt to nationalize America's steel mills. In 1995, a U.S. District Court sided with the U.S. Chamber of Commerce in a fight over an executive order that Bill Clinton issued related to federal contracting.

Mr. Obama himself has already seen the Supreme Court check his powers -- last week, the court limited his ability to make recess appointments. That case, however, wasn't taken to court by lawmakers. Senate Minority Leader Mitch McConnell and 44 other senators filed an amicus brief in the case, but the recess appointments were officially challenged by Noel Canning, a bottler and distributor of Pepsi-Cola products.

Individual legislators have in some instances challenged the executive branch, but those suits haven't gone very far. In 1999, 26 bipartisan lawmakers sued President Clinton, charging that he violated the War Powers Act by engaging in airstrikes against Yugoslavia without congressional approval. However, a federal judge threw out the case, noting that the courts have traditionally avoided wading into political disputes. Furthermore, the judge said the legislators had no standing in court.

Members of Congress have had more success with lawsuits to compel the executive branch to respond to subpoenas. In 2008, a federal judge sided with the House after Bush administration officials refused to testify. Similarly, the House has sued the Obama administration for failing to turn over documents related to the Fast and Furious scandal.

William & Mary law professor Tara Grove has argued that the lawsuits over subpoenas represent the extent of Congress' ability to challenge the executive branch in court.

"The judiciary was not designed to solve every constitutional controversy," she told CBS News. "Some issues need to be resolved by Congress and the president through the political realm."

The House and the Senate, she noted, have other ways to keep the executive branch in check, such as holding oversight hearings, using the power of the purse and their impeachment powers.

When it comes to Boehner's planned lawsuit, Grove said, "I think the main obstacle will be standing."

In other words, the House can't prove that it has a personal stake in the outcome of a lawsuit or that it has been personally harmed by the president's actions. Concerns about standing prompted McConnell and Senate Republicans to join forces with Noel Canning to sue the president over his recess appointments -- Noel Canning had standing in the case because it could prove Mr. Obama's recess appointments to the National Labor Relations Board impacted its business.

However, Grove and others have noted that in Boehner's case, it could be harder to find an outside party with standing. Boehner has yet to say what specific executive actions he'll challenge in court, but in many cases, Mr. Obama has simply opted not to enforce existing law or to delay a law's enforcement.

"It's very unlikely the House of Representatives could find someone else to step in because individuals just aren't harmed -- at least not in a concrete way -- when the executive branch doesn't enforce the law," Grove said. "There are lots of people who might be upset about that, but private individuals... can't bring suit when they're just upset about something."

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