See you in court, says GOP

Greg Nash

Congressional Republicans are taking President Obama to court over his use of executive power to sidestep Congress.

The executive actions that Obama touted during the State of the Union speech are adding fresh urgency to the legal efforts of Republicans, who say he is using the authority of his office in unprecedented ways.

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“We can go to court,” Sen. John McCain (R-Ariz.) said. “We haven’t got many more options except [to] tell the American people that we’re seeing an abuse of the intent of the Constitution.”

Republicans have launched a salvo of legal actions to challenge the president on issues ranging from the implementation of the Affordable Care Act to the National Security Agency’s (NSA) surveillance programs.

Speaker John Boehner (R-Ohio) said Republicans would not sit idly by as Obama takes unilateral actions like raising the minimum wage for federal contractors to $10.10 an hour.

“We’re going to watch very closely, because there’s a Constitution that we all take an oath to, including him, and following the Constitution is the basis for House Republicans,” Boehner said.

Much of the GOP frustration centers on the healthcare law, which the administration has routinely delayed and changed during the implementation process.

GOP lawmakers argue the administration’s selective enforcement of the healthcare law amounts to an unconstitutional exercise of power. They point to the administration’s decisions to delay health insurance requirements, cap out-of-pocket costs and expand the employer mandate penalty.

They are also challenging the healthcare law’s contraception mandate, which the administration tweaked after an outcry from churches and religious organizations that oppose birth control.

Republican senators filed two amicus briefs to the Supreme Court on Tuesday arguing the contraception mandate cannot stand.

“The First Amendment guarantees every American the right to free exercise of religion,” Sen. Ted Cruz (R-Texas) said.

“Yet, the Obama administration has chosen repeatedly to break the law by giving breaks to big business and Congress, while refusing to grant those same waivers to people with sincerely held religious beliefs,” he said.    

Another amicus brief filed by Sen. Roy Blunt (R-Mo.) and Rep. Randy Forbes (R-Va.) argues that the Department of Health and Human Services violated the Religious Freedom Restoration Act in its implementation of the contraception mandate. Eighty-eight lawmakers have signed it.

Sen. Rand Paul (R-Ky.) is planning a court offensive of his own, and plans to file a class action lawsuit against the NSA in the coming days.

He told the State of the Net conference Tuesday that the lawsuit is already written and predicted the Supreme Court would ultimately decide the challenge.

“I would like people on the Internet to go out and really support our lawsuit,” he said.

“Ten million people signed up for a lawsuit sends a message,” he added.

Meanwhile, Sen. Ron Johnson (R-Wis.) has sued the Office of Personnel Management for allowing lawmakers and their staff to receive federal subsidies for their coverage under ObamaCare.

Johnson argues the decision violated Congress’s intent to subject lawmakers and their staffers to the same rules as the rest of the country.

“I’m just trying to enforce the law as it’s written,” he said. “We’re not able to address it with [Senate Majority Leader] Harry Reid [D-Nev.], who’s allowed votes on four Republican amendments since July.

“All you can really do is take it to court to raise the profile of the issue,” he said. “I’ve got a good legal team. This is no slam dunk but we believe we have legitimate rationale for establishing standing to highlight the lawlessness of the administration.”

Democrats argue Obama’s actions are well within the limits of the presidency and say Republican obstruction has left him with little choice but to act.

“He’s working with Congress. He has said, ‘Let’s pass the legislation that’s been introduced in the Senate and the House to pass the minimum wage.’ But should he have to wait because of the intransigents?” said Rep. Xavier Becerra (Calif.), chairman of the House Democratic Caucus.

Republicans have bristled at Obama’s vow to use his pen and his phone to work around congressional opposition.  

GOP leaders, however, have been slow to embrace legal action against Obama because of uncertainty about the ability to gain standing in court. They have also questioned whether it would be possible to fully litigate the suits before Obama leaves office.

Rep. Trent Franks (R-Ariz.), the chairman of the House Judiciary subcommittee on the Constitution, has championed legal action.

“I think that’s the only choice we have, and that’s not just on ObamaCare, that’s on a host of different things,” he told The Hill in December.

Senate Republican Leader Mitch McConnell (Ky.) and Paul in December filed an amicus brief with the Supreme Court in Utility Air Regulatory Group v. Environmental Protection Agency, which could limit the administration’s power to unilaterally restrict carbon emissions under the Clean Air Act.

Some Republicans have accused their colleagues of grandstanding by taking their complaints to court.

“Sen. Johnson’s lawsuit is an unfortunate political stunt,” Rep. James Sensenbrenner (R) said of his home-state colleague’s suit earlier this month. “I am committed to repealing ObamaCare, but the employer contribution he’s attacking is nothing more than a standard benefit that most private and all federal employees receive — including the president.”

Boehner indicated the debate over suing the Obama administration could come up at the three-day GOP retreat on Maryland’s Eastern Shore, which begins on Wednesday.

“There are options that are available to us,” he said Tuesday.

McConnell declined to say whether he would support legal action to curb Obama’s use of executive power.

The biggest drawback to legal action, McCain said, is that it often takes years to wind through the courts.

“You know how long it takes,” he said. “The courts are very slow.”

He pointed to the legal challenge to Obama’s recess appointments to the National Labor Relations Board in January 2012.

The Supreme Court is just now hearing a challenge to those recess appointments, which three federal appeals court ruled an unconstitutional action.

“Sometimes it takes two years … so you get near to the end of his administration,” McCain said.

 

Julian Hattem and Mike Lillis contributed.