The GOP Will Be Looking to the Courts to Aid Their 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.

A coal-fired power plant in Juliette, Ga. Republicans are 
suing over President Obama’s executive actions to regulate 
carbon dioxide emissions, saying he has exceeded his 
authority. Credit John Amis/AP

“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.

Scott Pruitt, center, the Oklahoma attorney general, 
Credit Nick Oxford for NYT

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.

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