They point to a pivotal case brought by five Colorado legislators who sought the ability to challenge a state constitutional amendment in federal court. The case, Kerr v. Hickenlooper, was brought before the 10th Circuit Court of Appeals earlier this year and decided in favor of the legislators and their ability to challenge the legality of the executive branch. This, Rivkin and Foley argue, should worry Obama supporters who scoff at Boehner’s impending legal challenge.

Rivkin and Foley also point to Raines v. Byrd, a 1977 Supreme Court decision. In that ruling, the justices held that a prior case before the high court “stood for the proposition that legislators whose votes would have been sufficient to defeat…a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.”

Memo to White House Counsel’s Office: Boehner and his colleagues in the House can easily argue that the president’s unilateral re-write of sections of the Affordable Care Act have essentially nullified the votes cast in the House of Representatives to pass the bill.