Dems Warn Of Huge Judicial Power Grab As GOP Moves To Sue Obama

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As Republicans made their case for suing President Barack Obama during a House hearing Wednesday, Democrats warned that they were embarking on a dangerous new precedent that could dramatically enhance the power of the judiciary.

The Rules Committee, where Republicans have a 9-4 split, is expected to vote next week on the measure to sue Obama for unilaterally delaying the Obamacare employer mandate. From there it’ll go to the House floor, where Speaker John Boehner has promised a vote this month. Aides in both parties widely expect it to pass the full House.

“The president, in my opinion, has gone too far,” said House Rules Committee Chairman Pete Sessions (R-TX), lamenting an “unwarranted, ongoing shift of power to the executive branch.”

Democrats said the GOP is suing Obama “simply for doing his job” and warned that achieving standing in court for the lawsuit would set a perilous precedent wherein the legislative and executive branches can continually challenge each other in court over disagreements and thereby expand the power of the judiciary.

House Rules Committee Ranking Member Louise Slaughter (D-NY) quoted a recent National Review op-ed by conservative writer Andrew McCarthy warning that the lawsuit could backfire on Republicans.

“Boehner is heedless of the precedent he proposes to set: Instead of Obama’s executive monarchy, we’d now be subjects of a judicial oligarchy—all future presidents, no matter how lawful their actions, would be subject to vexatious congressional lawsuits and court directives from the judiciary Obama has been stocking with hundreds of like-minded Leftists for the last six years,” McCarthy wrote. “Putting aside the fact that this would put politically unaccountable judges in charge of all policy matters in our body politic, does anyone suppose that Democrats just might use Boehner’s lawsuit gambit as the basis for harassing a future Republican president that they lacked the votes to impeach or slash funding from?”

Walter Dellinger, a former acting solicitor general for the Clinton White House, said that for the courts to grant standing would be a “radical liberalization of the role of the judiciary.” He added that if the courts accept the GOP’s suit, “I see no limit to the number of matters that members of Congress could [sue for] to say their votes have been nullified.”

For Republicans, the optics of suing Obama to speedily implement a law they despise are awkward, but Boehner’s office says it chose this challenge for legal reasons. The lawsuit faces long odds, particularly because legal experts say it’ll be very difficult for the House to achieve “standing,” which requires them to prove material injury. If the courts permit the case to move forward, experts believe the challenge has a serious chance of succeeding.

The GOP’s witnesses at the Rules hearing were George Washington University law school professor Jonathan Turley and Florida International University law school professor Elizabeth Price Foley. The Democrats’ witnesses were Simon Lazarus, senior counsel at the Constitutional Accountability Center, and Dellinger.

Turley said he voted for Obama in 2008 but believes he has gone too far in wielding executive power, arguing that his executive actions are “threatening to make [the legislative branch] practically irrelevant.”

Lazarus said the lawsuit “contradict[s] the consistent practice of all administrations, Republican and Democratic, to responsibly implement” complex laws. He cited President George W. Bush’s delay of several deadlines under Medicare Part D to “ease the burden” of the rollout.

Slaughter labeled the lawsuit a “political stunt” designed to “appease members of the Republican party who will not rest until President Obama is charged with articles of impeachment.”

ABOUT THE AUTHOR

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.
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