The Magazine

Mitch McConnell, Judicial Activist

The Senate minority leader seeks majority opinions.

Apr 28, 2014, Vol. 19, No. 31 • By TERRY EASTLAND
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Right now there is no such case on the horizon, perhaps because the law has been corrected reasonably well in the recent cases. But that doesn’t mean McConnell is no longer litigating the public interest. In recent years, in fact, he’s been an amicus in cases on other issues. But where in the campaign finance cases McConnell usually has filed by himself, in these other cases McConnell has been one in a group of amici including senators but sometimes members of the House as well, all the officeholders on these briefs being Republicans. The cases tend to be well known: Some have resulted in landmark decisions; some, now before the Court, may achieve that status.

In 2012 McConnell joined 35 senators on an amicus brief in NFIB v. Sebelius. The brief addressed whether the entire Affordable Care Act should be struck down if the individual mandate were found unconstitutional, and it answered that question in the affirmative, reasoning that the mandate was at the heart of the law, and the law could not achieve its purposes without the provision. The brief assumed the unconstitutionality of the mandate, those on the brief being of the view (a McConnell aide told me) that the mandate exceeded the authority of Congress under the commerce clause. As it happened, a five-justice majority agreed the mandate did violate the commerce clause, but a different majority sustained the mandate as an exercise of the tax power, rendering “severability” a nonissue.

In 2012, McConnell joined nine of his Republican colleagues on an amicus brief initiated by Senator Orrin Hatch in U.S. v. Windsor; at issue was the Defense of Marriage Act. The Obama administration had refused, on very weak grounds, to defend the law in court. The 10 Republican senators entered the case hoping to help vindicate DOMA’s constitutionality, notwithstanding an executive branch derelict in its duties and determined to see the law struck down—as, in the event, it was.

In 2013, McConnell joined Rand Paul, the junior senator from Kentucky, and six House Republicans in an amicus brief in Utility Air Regulatory Group v. EPA. At issue is whether agency regulations limiting certain air pollutants are unconstitutional—which the eight officeholders say they are, contending that the EPA “has usurped Congress’s exclusive authority [to legislate] by improperly exercising legislative power and unilaterally amending a statute.”

Utility Air will be decided before the term ends in June, as will the three other cases in which McConnell has filed amicus briefs: Town of Greece v. Galloway, with 32 senators; Sebelius v. Hobby Lobby, with 15 senators and House members; and NLRB v. Noel Canning, with 44 senators—all Republicans, meaning that every Republican senator joined the brief.

In Galloway, the constitutionality of legislative prayer is the issue, and the amicus brief supports the prayers from Greece, N.Y., contested in the case, citing the Senate’s interest in protecting its own chaplaincy, now more than 200 years old. In Hobby Lobby, the “contraceptive mandate” in Health and Human Services regulations pursuant to the Affordable Care Act is being challenged on religious liberty grounds, with the amicus brief taking the side of religious liberty. And in Noel Canning, the issue is who gets to decide if the Senate is in recess for purposes of the president’s ability to make a recess appointment under the Constitution’s recess appointment clause—the Senate or the president? The Senate, say McConnell and company.

Is it unusual for a senator to file as an amicus in a Supreme Court case? I put the question to McConnell, who didn’t know but was interested in the answer. Don Ritchie, the Senate historian, said that modern senators do file amicus briefs and even occasionally will bring a case (if standing is available), as McConnell did against the FEC. And, Ritchie confirmed, senators get into the cases they do thinking they should use whatever lawful instruments are available in trying to achieve their strategic goals, especially in a capital where advances are often made very slowly.

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