Milbank: Republicans long for more activist judges
There was a time not too long ago when Republicans decried "activist judges." Now they're lamenting that judges are not being activist enough.
"Unfortunately, the courts have been reluctant to exercise their constitutionally conferred power," House Judiciary Committee Chairman Bob Goodlatte (R-Va.) proclaimed at a hearing Wednesday. He called on the courts "to check the president's overreach," and he complained that "the federal courts have read their own powers much more narrowly" than they should.
This newfound love of activist judges is the latest manifestation of what has been called Obama Derangement Syndrome: The president's opponents are so determined to thwart him that they will reverse long-held views if they believe that doing so will weaken his stature.
Republicans have, for example, long deplored the filing of "frivolous lawsuits." But at Wednesday's hearings, they were contemplating legislation that would authorize either chamber of Congress to file lawsuits against President Obama even though legal experts, including one of the Republican committee members' own witnesses, have said the efforts would fail.
After law professor Elizabeth Price Foley presented the panel with "a road map of how the House can establish standing to sue the president," the committee's ranking Democrat, John Conyers (D-Mich.), pointed out that earlier this month she penned an article for the Daily Caller titled, "Why not even Congress can sue the administration over unconstitutional executive actions."
Foley replied, "I did not pick that title."
Conyers pointed out that "you did say in there, though, that Congress probably doesn't have standing."
"I said most people think Congress probably wouldn't," the witness answered. "I'm not one of them."
No? She wrote: "Congress probably can't sue the president, either. The Supreme Court has severely restricted so-called 'congressional standing,' creating a presumption against allowing members of Congress to sue the president merely because he fails to faithfully execute its laws."
It's perhaps a sign of progress that the House Republicans are now focusing on suing Obama rather than impeaching him, which was discussed at an earlier meeting of the committee. But if they weren't talking much about the "I-word," as Rep. Steve King (R-Iowa) put it Wednesday, it's only because "it's an impractical tool," as long as "we have Harry Reid as a shield in the Senate."
But suing the president isn't any more practical because the courts have long refused to settle such disputes between the elected branches. This means the proposed bills, and Wednesday's hearing, were really about the GOP effort to delegitimize Obama.
"President Obama's actions have pushed executive power beyond all limits and created what has been characterized as an uber-presidency," Goodlatte inveighed.
"We have witnessed an unparalleled use of executive power," said Rep. Jim Gerlach (R-Pa.).
Rep. Tom Rice (R-S.C.) accused Obama of "trampling our Constitution and our very freedom," Rep. Diane Black (R-Tenn.) said that "this administration's lawlessness" included the appointment of an "illegal alien lobbyist" as an immigration official, and Rep. Ron DeSantis (R-Fla.) reminded the panel that "the president is not a king."
There are legitimate questions to be asked about the long-term shift of power from the legislature to the executive, but it's suspicious that Republicans are alarmed about abuses of power by Obama that are relatively minor compared to those undertaken by George W. Bush. Republicans are irritated by Obama's refusal to deport children of illegal immigrants and his delaying implementation of parts of Obamacare. Back when Democrats controlled the House and the Judiciary committee was looking into Bush's military tribunals, Guantanamo Bay, torture and warrantless wiretapping, Republicans on the panel said Democrats were "criminalizing differences of political opinion."
At Wednesday's hearing, Rep. Luis Gutierrez (D-Ill.) made a similar complaint as he defended the legality of Obama's immigration policy. But as he spoke, Rep. Darrell Issa (R-Calif.), who had temporarily taken over the chairman's gavel, began to laugh loudly.
"This is not a laughing matter," Gutierrez said angrily, slamming a hand on the table as he continued. Issa stopped laughing but soon cut off Gutierrez, saying his "time has expired by a minute and a half."
Issa then recognized himself as the next questioner and exceeded his allotted time by 31 / 2 minutes.
The Republicans and their witnesses filled three hours with accusations and wild hypotheticals: "Tyranny." "Dangerous and scary moment." "Imperial presidency." "Magisterial power." "Effectively having a monarch." "Alarming." "Constitutional tipping point." "Reeks of arrogance and conceit."
"Neither the president nor the attorney general have the constitutional right to make or change laws themselves," declared Rep. Lamar Smith (R-Tex.). "That is what happens in a dictatorship or a totalitarian government."
But with one crucial difference: You can't file a frivolous lawsuit against a dictator.