House Republicans have enlisted David Rivkin to shepherd their lawsuit against President Obama for alleged executive overreach, hiring one of the originators of the legal theory underpinning their action.
Speaker John Boehner had been consulting with Rivkin in the run-up to his announcement that he would sue the president for inflicting institutional injury against the House by acting unilaterally. Now, Rivkin, a partner at Baker Hostetler in Washington, will have a chance to test how receptive the courts will be to that theory he outlined with Florida International University College of Law professor Elizabeth Price Foley.
"No President is above nor should operate beyond the limits of the Constitution," House Administration Committee Chairwoman Candice Miller said in a statement. "The House of Representatives, using regular order and the powers that the Constitution has provided, calls upon our government's system of checks and balances and asks the judicial branch to examine the President's failure to faithfully execute the law."
The agreement caps payments at $350,000 through January 2015, and specifies an hourly rate of $500 for the legal work, according to the contract, signed by Rivkin, Miller, and House General Counsel Kerry Kircher.
Rivkin referred questions concerning the contract to the Administration Committee.
House Democrats, meanwhile, wasted no time decrying the suit as a waste of time and money. Democratic Congressional Campaign Committee Chairman Steve Israel said in a statement that the suit shows that Republicans have the wrong priorities.
"This outrageous waste of taxpayer dollars is yet another reminder of House Republicans' misguided priorities," Israel said. "Only in John Boehner's world does it make sense to pay lawyers $500 per hour to work on a partisan lawsuit while refusing to raise the minimum wage to $10.10 for hardworking Americans trying to feed their families."
The next step will be filing the text of the lawsuit, which Boehner already has said will seek to paint Obama's executive action delaying the mandate that all employers provide health insurance as a stipulation of the Affordable Care Act.
The biggest hurdle will be gaining standing before the court, according to several legal experts. The judiciary is often unwilling to jump into a dispute between the other branches of the government.
Several questions remain unanswered, including where the lawsuit will be filed. The United States District Court for the District of Columbia is the most obvious venue. But since the House voted to authorize the lawsuit, it could be argued that plaintiffs—in this case House members—reside in every district. It is possible, then, that the suit could be filed in a district perceived to be more amenable to a suit challenging Obama.
The conventional wisdom is that a more conservative area would be more willing to give standing to a suit against a Democratic president. However, Jonathan Turley, a law professor at George Washington University, said that is not necessarily so. He said conservative judges are actually less inclined to grant standing because they believe in a limited role for the judiciary.
"In the past conservatives have been associated with more narrow standing decisions," Turley said.
Openly forum-shopping could come with a backlash too, Turley added: "No judge wants to be viewed as an easy touch."
It also remains to be seen what kind of damages Boehner and the House will seek. Courts are unlikely to grant an injunction reversing Obama's decision on the employer mandate or picking apart the ACA, Turley said.
At any rate, it is possible that the lawsuit may still be working its way through the appeals process when the mandate is finally allowed to go into effect, which would render any injunction moot.
In the end, the relief sought may be simply declaratory—that is, a statement from the court that the president's action was unconstitutional.