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Boehner lawsuit threat offers midterm fodder

Speaker John Boehner, R-Ohio.
Tom Williams | CQ Roll Call | Getty Images
Speaker John Boehner, R-Ohio.

With the White House touting a "year of action" aimed at circumventing a gridlocked Congress, House Speaker John Boehner is now promising to push the GOP-led House to sue President Obama over his use of executive actions.

But what does suing the president actually mean, and what particular actions do House Republicans think necessitate a legal challenge? What can they accomplish?

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Boehner paints the move as part of a constitutional struggle between the legislative and executive branches, saying that Obama has exceeded his presidential power by issuing orders on issues like the environment, paid family leave, health care and LGBT rights.

"I believe the House must act as an institution to defend the constitutional principles at stake and to protect our system of government and our economy from continued executive abuse," he said Wednesday.

Election year politics

As with all things in an even-numbered year on Capitol Hill - there's politics at play here too. The idea that Obama is overstepping his authority is popular with the more conservative wing of the House GOP Conference, and many Republicans are fond of describing Obama as the mastermind of a law-flouting "imperial presidency." In a midterm year, headlines like "Republicans to Sue Obama" serve to prove to the GOP base that party leaders in Washington are prepared to throw the kitchen sink at an unpopular president.

Then there's the question of what legal disputes the lawsuit could actually be fought over. In a memo to members this week, Boehner notably did not say which of the president's executive actions would be the primary target of the suit.

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GOP aides say that's because they're still determining which legal approach has the best chance of a successful case. But critics argue that – without a specific target – the threat of a lawsuit is little more than transparent political posturing at a time when Republicans have little meaningful legislation to tout.

"They're doing nothing here and so they have to give some aura of activity," said House Minority Leader Nancy Pelosi of California.

Democrats also point out that Obama has issued far fewer executive orders than his predecessors. According to the Brookings Institution, Obama issues such an order once every 11 days. Former President Ronald Reagan, beloved by the small-government crowd in Washington, did so once a week. Obama's rate is the slowest since the administration of President Grover Cleveland, the think tank found.

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One Republican, Rep. Matt Salmon of Arizona, speculated that the suit might center on the administration's deferred deportation policy for young immigrants, or on delays in enforcement dates for key sections of the Obamacare health law – both hot-button issues in many midterm races.

"The president doesn't have the authority to arbitrarily change laws after he signs them into law and change the dates in them," he said.

How does a lawsuit against the president actually work?

Boehner is proposing to use a vehicle called the Bipartisan Legal Advisory Group (BLAG) to try to launch the lawsuit. It's the same organization used by Republicans to fight for the Defense of Marriage Act after the Justice Department stopped defending it on the grounds that the law was unconstitutional. The case went all the way to the Supreme Court, with a price tag of over $2 million to taxpayers.

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Using the BLAG also allows Republicans to get around the Democratic-led Senate. While the House has introduced legislation to curb Obama's use of executive actions, any such measure would be dead on arrival in the upper chamber. But the rules of the BLAG mean that Republicans are in charge of its work, so the lawsuit is their next best option.

Still, the federal court system hardly moves at lightning pace, so don't count on a ruling anytime soon.

— By Luke Russert, Frank Thorp V and Carrie Dann, NBCNews.com

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