Does Congress Have a Chance to Sue Obama Over Immigration Order?

House Speaker John Boehner of Ohio, followed by Rep. Bill Johnson, R-Ohio, emerges from a closed-door strategy session with House Republicans, on Capitol Hill in Washington, Tuesday, Jan. 27, 2015. (AP Photo/J. Scott Applewhite)

While millions of illegal immigrants look forward to coming out of the shadows, Republican House Speaker John Boehner is planning legal action to stop them, according to a House GOP leadership aide referred to in a CNN report.

Boehner wants a resolution on the floor that would authorize House lawyers to sue President Barack Obama for issuing an Executive Order protecting millions of illegal immigrants from deportation.

But is that even an option?

“Those cases usually get thrown out,” said Hans A. von Spakovsky, senior legal fellow at the conservative Heritage Foundation and an expert on the rule of law and immigration.

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For the Supreme Court to accept the case, the House would have to prove a specific injury caused by Obama’s order. That may be a problem for a federal body, according to Spakovsky.

In a federal court in Texas, 25 states are already suing Obama for the same reason, saying the order would increase their costs for law enforcement, health care, and education. If they can prove the federal government pushed an unfunded mandate on them, the order would be unconstitutional.

Spakovsky argued, if the House would indeed try to sue, it should join the lawsuit in Texas.

“I think it would be stupid for them to file a separate lawsuit,” he said, pointing out Obama’s administration is already trying to make the judge dismiss the pending suit.

If the House joined the suit though, it may give the case “a more solid footing,” Spakovsky said. After all, states were able to force changes to the Affordable Care Act in 2012 on similar grounds.

But still, “this is kind of an untried area of the law,” Spakovsky said. He couldn’t remember a single case of a whole branch of Congress filing a suit.

Even if the House authorizes the legal action, and the House files to intervene in the lawsuit, the judge would have to determine that the House actually has “an interest in the litigation that’s not going to be adequately represented by the other parties already in the lawsuit,” Spakovsky said.

That wouldn’t be that rare though. Individual congressmen, for example, join lawsuits fairly often, he said.