GOP’s appeal to courts for resolution is a new tack that signals the rise of libertarians

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.”


Mr. Goodlatte said the courts should expand their definition of standing so they hear more lawsuits to check presidential power. He said he has had conversations about that with Supreme Court justices.


“That we cannot dictate to the courts to do, but we believe the courts would be well-advised to do it,” he said.


Simon Lazarus, senior counsel at the Constitutional Accountability Center, a progressive think tank, said there are several reasons for the Republican shift, including the rise of the libertarian movement, which has always been more suspicious of democratic processes and more willing to turn to the courts to protect rights.


Strategically, meanwhile, Republicans may be looking at the change in the electoral college and concluding that the presidency has become a stronghold for Democrats, he said.


“So I think it’s not surprising that you find Republicans on the bench, off the bench and elsewhere, in the academy, trying to dream up theories and approaches, strategies trying to justify having the courts put constraints on the president’s ability to operate,” he said. “This is just the exact opposite of where conservative jurisprudence was less than 10 years ago.”


Indeed, it was just a decade ago that House Majority Leader Tom DeLay, Texas Republican, led a push to strip the courts of their ability to hear certain cases, as a means of punishing them for some adverse rulings.


The House passed legislation removing the courts’ jurisdiction to hear cases over whether the words “under God” in the Pledge of Allegiance were an unconstitutional establishment of religion — but the bill never cleared the Senate.


Mr. Von Spakovsky said if Congress thinks a president is overstepping his boundaries, the legislature already has strong tools it can use, chiefly the power of the purse. Congress can pass bills withholding funding from various parts of the executive.


“If they think the Justice Department is doing things improperly, well then don’t keep renewing their budget and giving them more money,” he said. “Do targeted cuts in their budget of things that will very sharply bring to the attention of Eric Holder that Congress is unhappy with the things he is doing.”


House Republicans are poised to try that with the Internal Revenue Service. The GOP docked the agency some money in the funding bill making its way through the House.


On another legislative front, House Republicans have passed a bill that would speed up some of the challenges — though that legislation has little chance of going through the Senate, where Democrats are in control and are content to let Mr. Obama pursue his executive actions.


Sometimes the courts can step in. Last week, the Supreme Court issued a 9-0 judicial spanking of Mr. Obama for illegally making recess appointments in 2012. But that case reached the court only because the people Mr. Obama appointed to the National Labor Relations Board made decisions, and a bottling company was able to argue that it was hurt by those decisions, which gave it standing to sue.