Rule of Law

GOP bill pulls courts into fight with Obama

By Stephen Dinan


Tired of watching helplessly from the sidelines as President Obama decided how to enforce the laws they wrote, House Republicans on Wednesday pushed back, passing a bill they said would at least rope in the courts to serve as potential referees between the branches of government.


The bill, which passed on a near party-line 233-181 vote, says that when either the House or Senate passes a resolution finding that a president is failing to execute a law, lawmakers will have legal standing to sue in federal court, with a speedy appeal to the Supreme Court.


“We are not held in high public esteem right now. Maybe members of Congress would be respected more if we respected ourselves enough to require that when we pass something, it be treated as law,” said Rep. Trey Gowdy, the South Carolina Republican who wrote the legislation.


It’s the latest in an escalating battle over Mr. Obama’s use of executive authority to do an end run around Congress. The president says he has stayed within his rights and has threatened to veto the House bill if it reaches his desk.


The fight erupted as Mr. Obama was making last-minute adjustments to his health care law and as he was preparing to face fierce pressure from immigrant rights groups that want him to expand his executive action and grant tentative legal status to most illegal immigrants living in the U.S.


Republicans said they have no recourse when they think Mr. Obama is abusing his authority. Under federal courts’ strict interpretation, members of Congress are hard-pressed to claim they are injured by the president’s decisions. The same goes for ordinary citizens.


That standard makes it difficult to challenge moves such as Mr. Obama’s 2012 policy granting many young adult illegal immigrants a chance at avoiding deportation. Immigration agents tried to sue to overturn that policy, but a judge threw out their case.


Congressional Republicans said their legislation would give them legal standing so courts would have to hear their cases.


The dispute centers on the Constitution’s admonition that the president must “take care that the laws be faithfully executed.”


Republicans say Mr. Obama has regularly broken faith with that clause through claims of prosecutorial discretion or in the name of efficiency and workability.


Mr. Obama, though, says he has the right to decide how to faithfully execute the laws, and that Congress can’t drag judges into the dispute.


“Congress may not assign such power to itself, nor may it assign to the courts the task of resolving such generalized political disputes,” the White House said in its veto threat.


House Speaker John A. Boehner, Ohio Republican, replied: “The fact that the president would threaten to veto a measure requiring him to uphold his Constitutional obligations underscores why this bill is needed, and why Senate Democrats should pass it immediately.”


Five Democrats voted with Republicans to pass the bill Wednesday, breaking with Mr. Obama and defying his veto threat.


Some legal analysts disputed the arguments of the bill’s sponsors, saying the courts likely would refuse to hear the cases.


Rep. James P. McGovern, Massachusetts Democrat, said if Republicans really wanted to defend Congress’ rights and prerogatives, they would have written the bill differently. As it is, he said, it’s a political document.


“You guys just don’t like the president. I get it. But get over it,” he said. He said the bill is “likely unconstitutional” and would result in scores of lawsuits.


Simon Lazarus, senior counsel at the Constitutional Accountability Center, said what Mr. Obama has done in carrying out the laws is no different from what President George W. Bush or his predecessors did, though Mr. Obama is doing it often. 


He said with complex laws, the president must have the ability to delay implementation of pieces in order to ensure the overall law is carried out.


“It’s not illegal and it’s certainly not a violation of his constitutional duty,” Mr. Lazarus said. “It’s actually exactly what the Constitution contemplates.”


Mr. Lazarus said Congress already has ways to overcome what they see as presidential obstruction — either by enacting laws or winning elections.


“This legislation is a recipe for moving the forum, the political theater, to another venue, namely the courts, and that is not what the Constitution created the courts to do,” he said.


Immigration rights activists viewed the House move as an effort by Republicans to try to roll back Mr. Obama’s 2012 order that gave tentative legal status to a subset of illegal immigrants called “dreamers.”


“It seems House Republicans want us all to know that they not only hate the president, they hate immigrants, too,” said Frank Sharry, executive director of America’s Voice.