- The Washington Times - Sunday, June 29, 2014

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.


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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.

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