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GOP Turns to Courts to Take On Obama

Bill Clark/CQ Roll Call File Photo
Rice is seeking House authorization to launch a lawsuit against the administration on behalf of the institution. So far, his authorizing resolution, has 42 GOP co-sponsors.

“From my standpoint, this is forcing me to engage in an action that I believe violates the law,” Johnson argued.

On the other side of the Capitol, freshman Rep. Tom Rice, R-S.C., is shopping around a resolution directing the House of Representatives to challenge Obama in court for sidestepping Congress on a number of issues relating to Obamacare, immigration and welfare work requirements.

“When the president announced this summer he was going to unilaterally extend the employer mandate ... I met with the Congressional Research Service and some of their lawyers,” Rice explained, “and I said, ‘What can be done, short of impeachment, to make the president comply with the law?’”

One thing Rice could do, according to Congress’s nonpartisan in-house research body, was seek the House’s authorization to launch a lawsuit against the administration on behalf of the institution. This would require the chamber to pass an authorizing resolution, which would not need to be acted upon by the Senate.

Rice told CQ Roll Call he put his plan into action after extensive conversations with the CRS, and also based on a March 2012 report that focused exclusively on the legal remedies Congress can take against other government entities.

The report does indicate that an institutional lawsuit stands a better chance of success than one brought by an individual member or group of members of Congress.

It also says, however, that legal precedent shows that any suit against the executive branch would need to prove without a shadow of a doubt that taking legal action was a last resort and the executive branch’s actions ultimately “disenfranchised” the Congress.

Rice’s resolution, which as of Friday had 42 Republican co-sponsors, includes language addressing this requirement: “Because of President Obama’s continuing failure to faithfully execute the laws, his administration’s actions cannot be addressed by enactment of new laws, because Congress cannot assume that the President will execute the new laws any more faithfully than the laws he has already ignored, leaving Congress with no legislative remedy to prevent the establishment of what is in effect an imperial presidency.”

But Stan Brand, a veteran D.C. attorney who has worked extensively with members of Congress on legal issues, said he didn’t think that would hold water.

“No federal court will entertain such sweeping attempts to order the President to perform such discretionary actions,” Brand said in an email. “Congress has, as the courts have held, other adequate remedies, including oversight, appropriations and legislative directives, to enforce its view but courts won’t referee these kinds of complaints.

“This is clearly a political statement,” he continued, “not a justifiable case or controversy.”

Rice disagreed with the characterization that the resolution is all about posturing. He said he has had “informal conversations” about the measure with Speaker John A. Boehner, R-Ohio, and House Majority Leader Eric Cantor, R-Va., and said he hoped for sponsorship and grass-roots support to reach a threshold where it became impossible for leadership not to put it on the floor for a vote.

A half-dozen co-sponsors interviewed by CQ Roll Call indicated that while they would like to see a successful lawsuit waged against the president, they didn’t sign onto Rice’s resolution expecting those results.

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