President Obama appears set on a collision course with the conservative-leaning Supreme Court over the constitutionality of his administration's transformative legislative agenda, legal scholars say.
Partisan battles over the Supreme Court nomination of Elena Kagan, combined with the administration's proposals to change established policy dramatically in fields ranging from healthcare to financial regulation to energy and immigration, make it likely that Obama and the court's conservative majority increasingly will be at loggerheads, these experts say.
"I was struck by the coordinated attacks on the Supreme Court by liberals on the Judiciary Committee," Tom Fitton, president of the conservative Judicial Watch organization, tells Newsmax. "I cannot recall any similar, sustained attacks on the high court in all my years in Washington. It is likely discomforting to all the Supreme Court justices. Obama and his liberal allies are trying to politicize the Supreme Court in a way not seen since FDR's attempt to pack it with extra appointees."
One thing appears certain: Supreme Court Justice John Roberts isn't likely to back down to Obama. Roberts reportedly still is angry over President Obama's decision to use the State of the Union address to scold the justices for their Citizens United v. FEC ruling, which rejected limitations on corporate and nonprofit electioneering.
When Obama said during the State of the Union address that the ruling would "open the floodgates" to donations by foreign companies and other special interests to influence U.S. elections, Justice Samuel Alito mouthed the words "Not true."
Politifact, the independent fact-checking organization, agreed with Alito. It rated the president's statement "barely true," calling it an exaggeration. In their majority opinion, the justices specifically stated that their decision would not overturn the longstanding prohibition in 2 U.S.C. 441e(b)(3) against any foreign-based organization "directly or indirectly" spending money to influence the outcome of any U.S. election.
The president's decision to use his bully pulpit to frame the ruling's political impact incorrectly may have caused lasting damage to his relationship with the judiciary. The Los Angeles Times reported on Tuesday that "Chief Justice John Roberts Jr. is still angered by what he saw as a highly partisan insult to the independent judiciary."
Simon Lazarus, counsel for the National Senior Citizens Law Center, told the Times that the Citizens United ruling came as a "real shock" to the administration, which "saw this new activist thrust among the conservatives as a direct threat to their legislative agenda."
Ever since Obama's State of the Union remarks, Democrats and the White House have moved aggressively to legislate a way around the Citizens United ruling. The Disclose Act legislation that the House recently passed, which conservative critics say is a thinly veiled attempt to regulate corporate First Amendment speech so heavily that it becomes impractical, is unlikely to enhance the court's rapport with the administration.
That the battle lines have been drawn is clear. During the Kagan confirmation hearings, for example, Sen. Sheldon Whitehouse, D-R.I., warned of "the danger of judicial activism," in reference to "the recent behavior of the court, particularly the five Republican appointees who've steered it so hard to the right."
Curt Levey, executive director of The Committee for Justice, a conservative organization that has expressed serious doubts about Kagan's ability to put the law above politics, tells Newsmax that allegations of judicial activism by conservatives are purely political.
"Democratic senators’ charges of activism by the Roberts Court were remarkably free of any legal rationale and amounted to little more than complaining about outcomes they don’t like — that is, decisions that don’t show favoritism for the 'little guy.' Now that judicial activism has gotten a well-earned bad name, such that Democrats can no longer openly defend it, they are reduced to saying 'you do it too,' as we saw at the Kagan hearings."
The Los Angeles Times reported Monday that a number of legal scholars now consider a clash between the expansive pro-government plans of the Obama administration and the Roberts court to be inevitable.
On healthcare, for example, GOP leaders in 20 states have filed suit to block the imposition of federal legislation that appears to give short shrift to the states' role in providing healthcare.
"Presidents with active agendas for change almost always encounter resistance in the courts," Stanford University law professor Michael W. McConnell, a former appellate court judge, told the Times. "It happened to [Franklin D.] Roosevelt and it happened to Reagan. It will likely happen to Obama too."
The Obama administration has already run into a brick wall in various court venues regarding its policies. Its setbacks, beyond the Citizens United case, include:
- The administration's six-month moratorium on offshore drilling was blocked by a federal judge who wrote that "the plaintiffs have established a likelihood of showing that the administration acted arbitrarily and capriciously in issuing the moratorium." When the administration tried to get a stay of that judge's order, that pleading also was rejected.
- In District of Columbia v. Heller, the Supreme Court struck down by a 5-4 margin the ban on guns in Washington, D.C. As solicitor general, Kagan had argued that the D.C. gun ban should continue.
- In June, by another 5-4 vote, the court expanded the protections in Heller to residents of all states, striking down a gun ban in Chicago as a violation of the Second Amendment right to bear arms.
- The administration is soon expected to go to court to try to block the Arizona law that aims to enforce the federal prohibitions on illegal immigration. There has been speculation the delay in the administration's lawsuit stems from its uncertainty over how to attack a law that is largely patterned after existing regulations that the federal government has declined to enforce.
In part, the impending clash as the administration pushes its agenda forward appears to reflect the nation's growing partisan divide.
In last week's confirmation hearings, Sen. John Cornyn, R-Texas, pushed Kagan to identify any area of economic activity that the federal government, under the U.S. Constitution, is not permitted to regulate. Kagan declined, saying, "I wouldn't try to."
"It is not surprising that Kagan was reluctant to provide an example of an economic activity that Congress can’t regulate under the Constitution’s Commerce Clause," Levey tells Newsmax. "To some degree, this reflects the sorry state of Commerce Clause jurisprudence, in which the Supreme Court has refused to enforce any meaningful limits on Congress’s enumerated powers.
"But Kagan also had something more specific in mind," Levey says. "She was clearly trying to keep her options open for stretching the Commerce Clause wide enough to allow her to uphold Obamacare’s individual insurance mandate."
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