The lawsuit would claim that the president has chosen not to execute existing laws, instead acting to make his own laws. But existing law requires the EPA to regulate pollutants, and the courts already have found that greenhouse gases are among those pollutants.
Boehner might have a stronger point when it comes to the president's waivers from the No Child Left Behind Act, though. Now that the country has reached the year when 100% of students are supposed to be at grade level in their studies under the impossibly rigid federal law, it was clear that just about every school in the nation would be listed as failing.
The Obama administration instead allowed schools to be excused from the law if they came up with improvement plans that met with the Department of Education's approval. That's part of why most states adopted the Common Core curriculum standards — they had to show they were adopting standards rigorous enough to pass muster — and included students' standardized test scores as a measurement of teachers' effectiveness in their job evaluations.
But there's nothing about allowing waivers in the original law. The administration clearly doesn't have the authority to dictate curriculum standards or rules for teacher evaluations; it does that by wielding the promise of waivers over states' heads. In this case, there's certainly some room for viewing the administration's interference as executive overreach.
But if the leaders of Congress can sue Obama for allegedly abusing his power by making law that could be seen as contravening law passed by legislators, who gets to sue Congress for its failure to carry out the most basic parts of its job by, for example, reauthorizing a new, more sensible rendition of school reform? The original law, passed in 2001, was supposed to be reauthorized and rewritten by now. Actually, it was supposed to be reauthorized several years ago, and then again this year.