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Republicans are bringing their objections to Obama administration policies to a courtroom near you.
It doesn’t seem to be a concerted strategy, but rather an outgrowth of the use of executive actions that they oppose. Only controlling the House of Representatives, prospects for legislation to block the regulations are not good.
“I’ve never been a big fan of lawsuits. Normally you should be able to settle disputes between the branches using the various powers each branch has, but I’ve signed on to a few including the recess appointments,” Sen. Jeff Sessions, R-Ala., said. “There’s a very, very strong pushback among the American people concerning the president’s executive orders. They feel like he passed Obamacare, then he just amends the law without Congress. I hear that all the time.”
The recess appointments matter looks to be a landmark case on executive powers. It will be argued before the highest court in the land on Monday.
That morning, lawyer Miguel Estrada will appear at the Supreme Court representing the interests of Senate Republicans in a case challenging the constitutionality of recess appointments made by President Barack Obama. Senate Republicans filed an amicus brief and have been granted 15 minutes to make their case in the dispute between the National Labor Relations Board and Noel Canning.
Estrada, a nominee of President George W. Bush to the U.S. Court of Appeals for the D.C. Circuit who was blocked from confirmation by Democrats, may not be the only prominent appellate litigator representing the interests of GOP lawmakers in actions against the administration.
Kentucky Republican Sen. Rand Paul has launched an effort to sue the National Security Agency to contest the bulk collection of phone records as part of National Security Agency surveillance efforts, and Republican Sen. Ron Johnson filed a lawsuit in federal court in his home state of Wisconsin against the Office of Personnel Management’s decision to allow members and staff to maintain employer contributions to their health insurance when they transitioned from the Federal Employee Health Benefits Plan to the District of Columbia’s Obamacare exchange.
Both senators are seeking campaign and political contributions to fund the legal challenges.
Johnson said Friday he did not expect the number of lawsuits to balloon, however.
“The opportunities to do these things are pretty limited, and I think that’s properly so. I mean, I don’t think members of Congress should be running to court all the time, and generally they would fail because they don’t have standing,” Johnson said. “This is a very unique situation where I think a member of Congress actually can show harm.
“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.
“Am I optimistic that we’re going to be successful at this?” Rep. Chris Stewart, R-Utah, asked. “Probably not. I’m not an attorney, so I’m not sure I can actually evaluate the merits of the case, but it seems to me that it was worth bringing up.”