Courts set to shape Obama le­gacy

His pres­i­den­tial record, more than that of most pre­de­ces­sors, rests with cru­cial legal de­ci­sions.

Los Angeles Times - - FRONT PAGE - By David G. Sav­age and Michael A. Me­moli

WASH­ING­TON — Af­ter bat­tling Repub­li­cans in Congress for more than six years, Pres­i­dent Obama and his lawyers will spend much of his re­main­ing time in of­fice fight­ing in the courts to pre­serve the ad­min­is­tra­tion’s most sig­nif­i­cant do­mes­tic achieve­ments.

The fate of Obama’s health­care law rests with the Supreme Court again in a case that will de­cide this month whether the ad­min­is­tra­tion may con­tinue to sub­si­dize pre­mi­ums of mil­lions of low- and mid­dle-in­come Amer­i­cans.

Like­wise Obama’s ef­fort to de­fer de­por­ta­tion and ex­tend work per­mits for as many as 5 mil­lion im­mi­grants here il­le­gally is stalled in a Texas fed­eral court. And legal bat­tles are just get­ting un­der­way in Wash­ing­ton over his plan to fight cli­mate change by forc­ing a 30% re­duc­tion in car­bon pol­lu­tion.

Though all pres­i­dents have their share of legal bat­tles, par­tic­u­larly at the end of their terms, Obama’s ac­com­plish­ments in of­fice to an un­usual de­gree will turn on how he fares at the high court, legal ex­perts say.

“Not since the New Deal has the court been as in­volved in defin­ing a pres­i­dent’s le­gacy,” said Irv­ing L. Gorn­stein, a Ge­orge­town Uni­ver­sity law pro­fes­sor who di­rects its Supreme Court In­sti­tute. “Health­care is Obama’s defin­ing achieve­ment. It’s the one thing that ev­ery­one as­so­ciates with him. If health­care goes down, the Obama le­gacy will be se­ri­ously com­pro­mised.”

White House aides say they are con­fi­dent the pres­i­dent’s ini­tia­tives will sur­vive legal chal­lenges, not­ing that the high court up­held the Af­ford­able Care Act as con­sti­tu­tional in 2012 by a 5-4 vote and that other fed­eral judges al­lowed his pre­vi­ous im­mi­gra­tion re­form plan, De­ferred Ac­tion for Child­hood Ar­rivals, to take ef­fect.

They also say the poli­cies now fac­ing court chal­lenge rep­re­sent only a frac­tion of his le­gacy, which in­cludes the eco­nomic re­cov­ery from the Great Re­ces­sion, restor­ing diplo­matic ties with Cuba and im­ple­ment­ing Wall Street re­forms.

Obama is not alone in hav­ing to de­fend his record in court.

Pres­i­dent Ge­orge W. Bush faced his own Supreme Court bat­tles and suf­fered three suc­ces­sive de­feats over his han­dling of the U.S. mil­i­tary pri­son at Guan­tanamo Bay, Cuba. Bush in­sisted that as com­man­der in chief, he alone could set the rules for detaining for­eign pris­on­ers. The jus­tices dis­agreed, rul­ing that the Con­sti­tu­tion’s pro­tec­tion of the right to habeas cor­pus gave pris­on­ers held by U.S. au­thor­i­ties the right to ap­peal in court.

Among the most fa­mous clashes be­tween the high court and a pres­i­dent came dur­ing Pres­i­dent Franklin D. Roo­sevelt’s first term. The jus­tices struck down a se­ries of his New Deal mea­sures, but af­ter Roo­sevelt’s land­slide re­elec­tion in the fall of 1936, the jus­tices reversed course. They up­held min­i­mum wages and the So- cial Se­cu­rity Act, and new Roo­sevelt ap­pointees to the court en­sured his le­gacy would sur­vive in law.

For Obama, the most im­por­tant rul­ing will come in King vs. Bur­well by the end of June. If the jus­tices de­cide fed­eral sub­si­dies are il­le­gal in states that did not cre­ate their own in­sur­ance ex­changes un­der the law, more than 6 mil­lion peo­ple could lose their cov­er­age, un­rav­el­ing the pro­gram in twothirds of the states.

The case cen­ters on a four-word clause that had gone un­noted in 2010 when Congress un­der Demo­cratic con­trol passed the law. Though the leg­is­la­tion promised sub­si­dies to help peo­ple buy in­sur­ance, one pro­vi­sion said th­ese pay­ments would go for cov­er­age bought through an ex­change “es­tab­lished by the state.”

How­ever, 34 states, many with GOP-con­trolled state gov­ern­ments, de­cided against es­tab­lish­ing an ex­change and opted to rely on the fed­eral ex­change. The jus­tices could de­cide that the law, read as a whole, shows that all qual­i­fied buy­ers may ob­tain sub­si­dies. But they could read the four­word clause to mean subsi- dies are limited to pol­i­cy­hold­ers in only 16 states.

Such a rul­ing — com­ing from the five Repub­li­can ap­pointees of the Supreme Court — could blow up in the face of GOP lead­ers in Congress and in state cap­i­tals. In states such as Texas, Florida, Ohio, Penn­syl­va­nia and North Carolina, sev­eral hun­dred thou­sand res­i­dents who re­cently ob­tained in­sur­ance could be hit with a steep hike in their rates.

The White House is ready to blame the court and Repub­li­cans if the sub­si­dies are struck down.

“If the Supreme Court were to throw the health­care sys­tem in this coun­try into ut­ter chaos, there would be no easy so­lu­tions for solv­ing that prob­lem,” White House Press Sec­re­tary Josh Earnest said Wed­nes­day. “We’ve seen many Repub­li­cans be very will­ing to try to play pol­i­tics in a rather cyn­i­cal way on this is­sue, but not a lot of con­struc­tive en­gage­ment to solve prob­lems.”

House Ma­jor­ity Leader Kevin McCarthy (R-Bak­ers­field) said that Repub­li­cans were work­ing to pre­pare for the de­ci­sion.

“Don’t ex­pect us to pre­de­ter­mine the Supreme Court,” he said when pressed by re­porters last week to out­line what the party’s re­sponse might be. “What we have to first see [is] what their de­ci­sion is and what we have to solve. But I feel com­fort­able with where we are right now, that we are pre­pared for what­ever de­ci­sion they make to be able to have an an­swer for a so­lu­tion quickly.”

In re­cent decades, the two par­ties have gone back and forth on the is­sues of ex­ec­u­tive power and the role of the courts. Pre­dictably, the party that does not oc­cupy the White House ac­cuses the pres­i­dent of abus­ing power.

A decade ago, Democrats cheered court de­ci­sions that tried to rein in the Na­tional Se­cu­rity Agency or the Guan­tanamo pri­son. Re- pub­li­cans com­plained of “ac­tivist” judges who sought to “leg­is­late from the bench.”

Now it is Repub­li­cans turn­ing to the courts and ac­cus­ing the pres­i­dent of abus­ing his author­ity. Last year the House un­der GOP con­trol voted for the first time to sue a pres­i­dent for ex­ceed­ing his author­ity.

Jonathan Tur­ley, a Ge­orge Wash­ing­ton law pro­fes­sor who said he voted for Obama, signed on as the lead lawyer for the House. His suit says Obama chose to ex­tend sev­eral dead­lines set in the health­care law and opted to spend money that was not ap­pro­pri­ated by the House.

For Democrats, what they por­tray as con­ser­va­tive court ac­tivism has emerged as a key is­sue in the early stages of the 2016 pres­i­den­tial cam­paign. Hil­lary Rod­ham Clin­ton has turned a spot­light on de­ci­sions that limited vot­ing rights and opened the door for more money in pol­i­tics.

On Thurs­day, she called upon Congress to re­in­state pro­vi­sions of the Vot­ing Rights Act that the high court struck down in 2013. In May, she pledged to only con­sider Supreme Court nom­i­nees who would vote to over­turn Cit­i­zens United, the 2010 rul­ing that said cor­po­ra­tions and unions were free to spend un­lim­ited sums to sup­port po­lit­i­cal cam­paigns.

When the 5th Cir­cuit Court of Ap­peals in New Or­leans blocked the pres­i­dent’s lat­est de­por­ta­tion de­fer­ral pro­gram for im­mi­grants from tak­ing ef­fect, Clin­ton was quick to stand with the White House.

“[Obama] fol­lowed prece­dent, took steps for fam­i­lies when GOP House wouldn’t. Must con­tinue the fight,” she wrote on Twit­ter.

Ni­cholas Kamm AFP/Getty Images

PRES­I­DENT OBAMA’S sig­na­ture health­care law awaits an­other Supreme Court chal­lenge, and his ac­tion on im­mi­gra­tion is stalled in a fed­eral court.

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