Taking Obama to court a long shot but lawsuit not folly, Congress is told

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House Republicans’ attempt to sue President Obama for overstepping his constitutional boundaries isn’t a slam dunk, but neither is it the laughable case Democrats have suggested, a prominent scholar and Obama supporter testified to Congress on Wednesday.

Jonathan Turley, a law professor at George Washington University, said the GOP likely has the advantage on their claims that Mr. Obama has overreached, while Democrats have a good argument that the courts would refuse to hear the case. But he said that’s all the more reason to press judges to get involved and make clear when they will step in.

“This field has been turned into a bloody mess by the Supreme Court,” he told the House Rules Committee, whose hearing Wednesday was the first step in what is likely to become a groundbreaking lawsuit.

GOP leaders have drawn up a resolution authorizing the House to sue over Mr. Obama’s decision to waive the 2014 deadline and penalties for large companies to provide their employees with health insurance. The leaders argue that when the two other branches of government clash over fundamentals of lawmaking, it’s up to the courts to step in and settle big constitutional issues.

Democrats, though, say the GOP push is imbued with politics and unworthy of Congress‘ time.

“This has nothing to do with constitutional law. This has everything to do with politics,” said Rep. Jim McGovern, Massachusetts Democrat. “We all know why we’re here. We’re here because my Republican friends do not like Barack Obama.”

Mr. Obama has mocked the prospects of a lawsuit, and a number of legal commenters have doubted that the courts would entertain it. Judges usually demand someone prove a specific injury before taking a case, and have rejected claims of “institutional injury” to Congress.

Even some conservatives have dismissed Republican leaders’ push, saying Congress has other tools it can use to fight back without resorting to the courts.

But Mr. Turley and others who back the GOP’s efforts said the framers of the Constitution would be shocked by how much power has gravitated to the president, and said the courts must take the field as referees.

Rep. Tom Cole, Oklahoma Republican, said he hasn’t yet made up his mind how he’ll vote, but said he found himself grappling with a long-standing antipathy toward seeking judges’ guidance.

“I hate going to court. I consider it the civil equivalent of going to war,” he said. “It’s unpredictable.”

Indeed, Republicans generally have been less enthusiastic about turning to the courts to settle disputes between the White House and Congress.

Elizabeth Foley, a law professor at Florida International University, said she counted 44 cases where legislators had filed lawsuits arguing that Congress had been institutionally wronged by the executive branch. Of those, 41 had partisan leanings, and in two-thirds of the cases, Democrats were the chief plaintiffs.

Rep. Louise Slaughter, New York Democrat and ranking member of the Rules Committee, was a plaintiff in one of the lawsuits against President George W. Bush, Ms. Foley said.

Mrs. Slaughter, though, questioned the GOP’s motives. She said she thought Republican leaders agreed to bring the lawsuit as a way to head off growing calls from conservative activists to file articles of impeachment against Mr. Obama.

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