G.O.P. Turns to the Courts to Aid Agenda

New York Times

By Michael Shear

January 3, 2015

G.O.P. Turns to the Courts to Aid Agenda 

As Republicans prepare to take full control of Congress on Tuesday, the party’s leaders are counting on judges, not their newly elected majority on Capitol Hill, to roll back President Obama’s aggressive second-term agenda and block his executive actions on health care, climate change and immigration.

 

On health care, Republicans in Washington have sued the president and joined state lawsuits urging the Supreme Court to declare major parts of the Affordable Care Act unconstitutional. On climate change, state attorneys general and coal industry groups are urging federal courts to block the president’s plan to regulate power plants. And on immigration, conservative lawmakers and state officials have demanded that federal judges overturn Mr. Obama’s plan to prevent millions of deportations.

 

Democrats say the legal moves reflect a convenient turnabout for the Republican Party and a newfound willingness to seek an active role for the judiciary when it benefits conservative policy goals.

 

“What they cannot win in the legislative body, they now seek and hope to achieve through judicial activism,” said Representative Gerald E. Connolly, Democrat of Virginia. “That is such delicious irony, it makes one’s head spin.”

 

But conservative legal scholars say Republicans are justified in seeking judicial relief from what they believe has been a series of egregious abuses of power by Mr. Obama. They argue that urging the courts to restrain the president’s authority is legally different from a liberal judge’s using rulings to invent new rights under the Constitution.

 

Legal distinctions aside, the results may be similar: In 2015, major policy decisions affecting millions of Americans will be debated and decided in courtrooms, not legislatures.

 

“Given the state of dysfunction in Congress, in many cases, the courts do represent the last opportunity to get a fair hearing on these issues,” said Patrick Morrisey, the attorney general of West Virginia, who is leading the court fight against the president’s efforts to regulate coal.

 

Mr. Morrisey, a Republican, disputed the view of many liberals that conservatives are now looking for help from the activist judges they once derided. “Quite the opposite, it’s a call for adhering to the rule of law,” he said.

 

As the new year begins, conservatives and Republican officials have filed legal briefs in courts across the country aimed at persuading judges to block Mr. Obama from exercising his executive authority and to stop expansive decisions by his agencies.

 

In an amicus brief filed in December on behalf of 68 members of Congress, the American Center for Law and Justice, which fights for conservative causes in the courts, argued that Mr. Obama’s immigration actions were unconstitutional because officials had “exceeded the bounds of their prosecutorial discretion and abdicated their duty to faithfully execute the law.” In another brief, the group urged the Supreme Court to invalidate the president’s health care tax subsidies, saying they were the “most egregious example of the administration’s make-it-up-as-we-go approach to implementing” the health care law.

 

Mr. Morrisey is also seeking to convince a federal court that Mr. Obama’s attempts to have the Environmental Protection Agency set standards for carbon emissions amount to illegal double regulation of power plants, which already must comply with rules about mercury and other pollutants.

 

Senator Charles E. Schumer, Democrat of New York, said he believed the president’s policies would withstand the legal challenges, saying of the administration, “Certainly, they were very, very careful not to go beyond what the law will allow.”

 

Mr. Schumer added that the Republican definition of an activist judge was flexible. “They decry the courts’ overruling or implementing things they don’t like,” he said, “but are eager to have the courts implement things they like.”

 

Jay Sekulow, chief counsel at the American Center for Law and Justice, countered that conservatives were turning to judges more frequently because of Mr. Obama’s moves to enact sweeping policy on his own, and because gridlock in Washington had prevented Republican efforts to stop him.

 

“The courts are the venue, really, to try to keep the presidential authority in check,” Mr. Sekulow said in an interview. “That’s why the conservatives are turning to the courts.”

 

For years, conservatives criticized liberals who sought judicial action on civil rights or social issues.

 

“We’re seeing that activist judges across the country are overturning the will of the people,” Franklin Graham, a son of the Rev. Billy Graham, told a television station in Charlotte, N.C., in October after the Supreme Court declined to review lower-court rulings that had declared same-sex marriage bans in several states unconstitutional.

 

In 2004, President George W. Bush offered his support for a constitutional amendment to ban same-sex marriage, saying the change was required to counter “activist judges and local officials” who had “made an aggressive attempt to redefine marriage.”

 

In 2013, Senator Marco Rubio, Republican of Florida, said in a statement that the Roe v. Wade Supreme Court decision legalizing abortion was “one of America’s most blatant instances of judicial activism.”

 

But the courts have also been a source of political victories for Republicans, most notably in 2000, when the Supreme Court intervened to stop the counting of presidential ballots in Florida and gave Mr. Bush the White House.

 

In 2008, the Supreme Court affirmed that the Second Amendment protects the right to individual gun ownership, an important conservative cause. In 2010, it prohibited restrictions on campaign contributions in the Citizens United case, another win for conservatives.

 

Clark Neily, a senior lawyer at the Institute for Justice, a libertarian group, said many conservatives were now eager for judges to be more aggressive in examining, and possibly overturning, the federal government’s actions. But he said the term “activist” had become pejorative. He prefers to call for more “judicial engagement.”

 

Scott Pruitt, the attorney general of Oklahoma and a Republican, has been among the most determined state officials in turning to the courts in the last several years. His office filed the first challenge to the health care law’s subsidies. Mr. Pruitt said the latest efforts by conservatives to challenge the administration were critical to guard against a federal government that he said had seized too much power.

 

“At its core, I would not characterize this as a political or a policy response,” Mr. Pruitt said. “From my vantage point, it is truly about these issues of federalism and rule of law that really matter to the states.”

 

Mr. Pruitt said state officials had no choice but to turn to the courts.

 

“Is that activism?” he asked. “To me, that’s the opposite of activism. It is using the courts to make sure we go back to respect for the rule of law.”

 

Others see it differently. Mr. Connolly, whose constituents include federal workers in the Virginia suburbs outside Washington, said the Supreme Court’s decision in the 2000 Bush v. Gore case had sent a signal to conservatives to view the courts as a place for political success.

 

“It absolutely opened the floodgates to such judicial activism from the right,” Mr. Connolly said. “It blessed it, and it sanctioned it.”

 

He predicted that in 2015, the Republican court strategy would have “some successes and some disappointments.”

 

The first big test will come in June, when the Supreme Court is expected to rule in the health care case. Mr. Pruitt expressed confidence about the outcome.

 

“On the merits, we have a strong argument, a strong position,” he said. “I’m encouraged as we head into 2015.”

For more information, go to:  www.beverlyhillsimmigrationlaw.com