GOP’s turn to courts for res­o­lu­tion a new tack

Sig­nals rise in party of lib­er­tar­ian wing

The Washington Times Weekly - - Politics - BY STEPHEN DI­NAN

House Speaker John A. Boehner’s call to sue Pres­i­dent Obama for over­step­ping the bounds of ex­ec­u­tive author­ity marks a stun­ning break for Repub­li­cans, who for years have tried to keep the courts out of the big ques­tions of the day.

Just a decade af­ter House Repub­li­cans tried to strip the courts of their abil­ity to hear key cases on such mat­ters as the Pledge of Al­le­giance, the GOP is now plead­ing with federal judges to get more in­volved — chiefly to rein in Mr. Obama.

“The courts have ab­sented them­selves from ma­jor dis­putes about the mean­ing of Ar­ti­cle I and Ar­ti­cle II of the Con­sti­tu­tion, this dis­pute with re­gard to the power of the Congress and the power of the pres­i­dent, and they should take those mat­ters up and give their in­ter­pre­ta­tion of what the Con­sti­tu­tion says,” Rep. Bob Good­latte, chair­man of the House Ju­di­ciary Com­mit­tee and a pro­po­nent of the strat­egy, told re­porters last week.

An­a­lysts said the switch sig­nals the con­tin­ued as­cen­dance of the lib­er­tar­ian wing of the Repub­li­can Party, which tra­di­tion­ally has been more open to hav­ing judges step in to pro­tect lib­er­ties from the overzeal­ous pop­u­larly elected Congress and the seem­ingly ever-ex­pand­ing ex­ec­u­tive branch.

Mr. Boehner, who de­tailed his push at his weekly press con­fer­ence last week, said one of the most com­mon ques­tions he hears from vot­ers across the coun­try is what steps can be taken to rein in Mr. Obama.

The House speaker, though, has been point­edly mum on specifics, and le­gal schol­ars said much will de­pend on what, specif­i­cally, he de­cides to sue over. He has said he will put up the law­suit for a vote in the House some­time in July.

The Repub­li­cans’ frus­tra­tion is un­der­stand­able. Con­trol­ling just one-half of one branch of govern­ment, they have had to sit on the side­lines while Mr. Obama has taken ex­ec­u­tive ac­tion on ev­ery­thing from re­leas­ing pris­on­ers from Guan­tanamo Bay and grant­ing ten­ta­tive le­gal sta­tus to some il­le­gal im­mi­grants to carv­ing out ex­cep­tions to his own health care law and bomb­ing Libya, all with­out earn­ing con­gres­sional ap­proval.

When the Repub­li­can-con­trolled House has tried to push back by pass­ing bills, the Demo­crat-con­trolled Se­nate has re­fused to take them up, leav­ing Mr. Obama with a free hand.

But un­like sports, where the ref­eree is al­ways on the field, in con­sti­tu­tional govern­ment the courts are re­luc­tant to get in­volved un­less some­one can prove an ac­tual harm from los­ing money or lib­er­ties — and in the case of Mr. Obama’s health care de­lays or bomb­ing Libya, it’s dif­fi­cult to find any­one who has stand­ing to sue.

Randy E. Bar­nett, di­rec­tor of the Ge­orge­town Cen­ter for the Con­sti­tu­tion, has been one of the chief le­gal minds rais­ing the call for judges to take the field.

He ar­gues that the be­lief in ju­di­cial re­straint stems from a mis­un­der­stand­ing of judges’ roles. Rather than hav­ing a “power” that re­quires re­straint, how­ever, he said judges should be seen as hav­ing a duty to en­force the Con­sti­tu­tion and laws.

“Federal judges are agents of the people whose most im­por­tant job is pro­tect­ing the sov­er­eign people when their ser­vants — whether Congress or the pres­i­dent — ex­ceed their con­sti­tu­tional pow­ers,” Mr. Bar­nett said.

But Hans A. Von Spakovsky, se­nior le­gal fel­low at the Her­itage Foun­da­tion, said he is not sure how the House will be able to ar­gue that it has stand­ing over many of the big is­sues to which Repub­li­cans re­ject.

“The chances of it suc­ceed­ing are ex­tremely slim,” he said, “the rea­son be­ing the court has es­tab­lished very strict stand­ing rules. You have to show a very spe­cific con­crete in­jury be­fore you can pro­ceed with a law­suit.”

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