Although House Republicans managed to keep it a secret until now, their transparently political lawsuit against the president was found to be baseless in early September by the nonpartisan Congressional Research Service. Part of the Library of Congress, the CRS provides neutral legal and policy research and analysis to Congress, including committees and individual members. The Constitutional Accountability Center's Simon Lazarus and Elisabeth Stein got a copy of the September 4 CRS report, and it may explain why the lawsuit, though loudly trumpeted, has not actually been filed.
In an article entitled The Congressional Research Service Finds that Boehner's Lawsuit Has No Legal Basis, Lazarus and Stein write:
Now, three months after the party-line House vote to green-light the lawsuit, no complaint has yet been filed. If this stretched out delay means that Boehner has actually redirected his sue-Obama gambit toward oblivion, the reason may be this unnoticed six week old CRS report. … [The] report actually targets a single instance of alleged agency delay and exercise of enforcement discretion – the Obama Administration's adjustments of effective dates for the Affordable Care Act's so-called employer mandate to offer employees ACA-complaint health insurance or pay a tax. This delay happens to be the basis – the sole basis – for the legal action against the President that Boehner outlined in July. Although shrouded in twelve pages of fine print and protectively bureaucratic phraseology, the report's bottom line is clear: not merely are the legal underpinnings of the Republicans' planned lawsuit weak; the report turns up no legal basis – no "there" there – at all.
So who in Congress requested this analysis of the CRS?
CRS reports such as this one are generated in response to requests by members or committees of Congress, though the CRS does not make public the identity of the requester or requesters. This particular report – of which House Democrats were unaware until it appeared – bears the earmarks of an inquiry, requested by the Speaker or his allies, to give some color of legitimacy to their charges of rampant presidential illegality. Instead, the result validates the lawyers' maxim not to ask a question when unsure of the likely answer.
The Republicans came up with the lawsuit gimmick as a sop to their base, who regularly characterize President Obama as a lawless dictator. It is typical of the irresponsible behavior we have seen from the House since the 2010 election.
And this is the party that wants to take over the Senate in next week's elections.