How Republicans Learned to Love Litigation

Speaker Boehner is again turning to the courts to do what he couldn't do in Congress: stop President Obama.

Pablo Martinez Monsivais/AP

For a party with a history of railing against activist judges and frivolous lawsuits, Republicans sure do like to litigate. Their latest foray into the courts is likely to come over immigration, after Speaker John Boehner told his House members on Tuesday morning that the leadership was "finalizing a plan" to authorize a lawsuit against President Obama over his unilateral actions to shield millions of undocumented immigrants from deportation. This after the House GOP already (after some lawyer troubles) sued the Obama administration over its implementation of the Affordable Care Act.

What this is really about is Republicans looking to the courts to do what they have not been able to do legislatively. After all, the House could easily have voted to authorize an immigration lawsuit—or to join one of the several already filed—in December after the president announced his new policy. Obama had telegraphed his executive actions for months, and Republicans had been criticizing them as illegal from the outset. But the GOP first tried to block the move with a bill tied to funding for the Department of Homeland Security. While that measure passed the House, it now appears unlikely even to pass the Republican-led Senate, much less reach the president's desk for a certain veto. So Boehner is moving to a lawsuit as a backup plan. He told Republicans on Tuesday that his team believes the legal route "gives us the best chance of success" to challenge the president, according to a person in the room.

The Republican maneuvering over Obamacare followed a similar pattern, only over a longer period of time. The House GOP majority passed dozens of bills to repeal the law in whole or in part over the last four years, but only the most minor changes made it to a presidential signature. Finally, under pressure from conservatives, Boehner moved to file a suit alleging, among other complaints, that the administration exceeded its authority by delaying the employer insurance mandate without permission from Congress. Legal experts aren't optimistic that lawsuit will succeed, and the employer mandate (that the GOP opposes on policy grounds) likely will long since have taken effect even if it does. Even with a new majority in the Senate, Republicans are relying on yet another legal proceeding as the best shot to rip apart Obamacare: the Supreme Court's upcoming review of subsidies tied to the federal insurance exchanges.

“Republicans control both houses of Congress, but Speaker Boehner still doesn’t have the wherewithal to legislate," said Drew Hammill, spokesman for House Minority Leader Nancy Pelosi. He called the latest lawsuit plan "an embarrassing admission of failure." It's a highly partisan statement, but Democrats know they have the upper hand here. Just a day before Boehner informed his members of the lawsuit, Republican leaders scrapped plans to vote on legislation bolstering border security. They blamed the blizzard heading for the Eastern seaboard, but the bill faced opposition from conservatives who either felt it wasn't strong enough or worried that it would start the party down the path toward immigration reform. If the last two years weren't indication enough, the episode showed again that Boehner doesn't have enough votes to do what he wants on immigration without help from Democrats.

The reality is that both Obama and Boehner have run out of patience with the legislative process. The president has chosen to do what he could himself, while the speaker, again, is turning to the courts.