Obama racks up ju­di­cial losses

Court rul­ings re­ject at­tempts at unchecked uses of power

The Washington Times Weekly - - Politics - BY BEN WOLF­GANG

“To­day’s de­ci­sion is a vic­tory for re­li­gious free­dom and an­other de­feat for an ad­min­is­tra­tion that has re­peat­edly crossed con­sti­tu­tional lines in pur­suit of its big govern­ment ob­jec­tives.” — House Speaker John A. Boehner, on the Supreme Court de­ci­sion that struck down the ad­min­is­tra­tion’s ef­fort to re­quire com­pa­nies to pro­vide free con­tra­cep­tive cov­er­age

Pres­i­dent Obama suf­fered two fi­nal de­feats in the Supreme Court last week, cap­ping a 20132014 term in which the jus­tices de­liv­ered sev­eral ju­di­cial hits to the White House while tak­ing a firm stand against the unchecked power of the state.

The ad­min­is­tra­tion’s losses on Oba­macare rules and com­pul­sory union dues served as a re­buke on the Supreme Court’s fi­nal day af­ter months of ju­di­cial de­ci­sions to rein in big govern­ment on is­sues such as snoop­ing with­out a war­rant, cam­paign fi­nance re­stric­tions and Mr. Obama’s re­cess ap­point­ment pow­ers.

Just as damn­ing was the way the court ruled in some of those cases. Chief Jus­tice John G. Roberts Jr. cor­ralled unan­i­mous votes on pri­vacy and re­cess ap­point­ments — cases that dealt sting­ing de­feats to Mr. Obama, him­self a lawyer and for­mer lec­turer on con­sti­tu­tional law.

In the more than five years that Mr. Obama has been in of­fice, the court has re­jected the govern­ment’s ar­gu­ment with a 9-0 de­ci­sion 20 times.

Dur­ing the eight years each in the ad­min­is­tra­tions of Ge­orge W. Bush and Bill Clin­ton, the govern­ment lost on unan­i­mous votes 15 times and 23 times, re­spec­tively. That puts the Obama ad­min­is­tra­tion on pace to greatly ex­ceed re­cent pre­de­ces­sors in terms of ju­di­cial losses.

“The im­por­tance of the unan­i­mous cases is that you can’t say, ‘Well, there are five Repub­li­can ap­pointees on the court and four Democrats.’ These cases where they haven’t got­ten the votes of ei­ther of the two Obama nom­i­nees means the ar­gu­ments be­ing pre­sented by the Jus­tice Depart­ment to the court are just out of left field,” said Ilya Shapiro, a se­nior fel­low in con­sti­tu­tional stud­ies at the lib­er­tar­ian Cato In­sti­tute.

Mr. Obama ap­pointed Elena Ka­gan and So­nia So­tomayor as jus­tices.

Al­though the de­ci­sions were not unan­i­mous, con­gres­sional Repub­li­cans and other crit­ics of Mr. Obama saw the rul­ings as ev­i­dence that the Roberts court is act­ing as some­thing of a fi­nal line of de­fense against a pres­i­dent who brags about his use of ex­ec­u­tive power to by­pass Congress and im­pose his lib­eral agenda on the Amer­i­can people.

“To­day’s de­ci­sion is a vic­tory for re­li­gious free­dom and an­other de­feat for an ad­min­is­tra­tion that has re­peat­edly crossed con­sti­tu­tional lines in pur­suit of its big govern­ment ob­jec­tives,” said House Speaker John A. Boehner, an Ohio Repub­li­can who last week an­nounced that he would sue the pres­i­dent for abuse of ex­ec­u­tive author­ity.

It’s un­clear how that law­suit will play out, but the ad­min­is­tra­tion’s re­cent track record in high-pro­file cases has been poor.

Mr. Obama’s chief con­sti­tu­tional at­tor­ney, So­lic­i­tor Gen­eral Don­ald B. Ver­rilli, ar­gued and lost the re­cess ap­point­ments case, a chal­lenge to pub­lic em­ployee unions, a ma­jor cam­paign fi­nance case and, last week, the lat­est Oba­macare chal­lenge in which the court struck down the ad­min­is­tra­tion’s ef­fort to re­quire com­pa­nies to pro­vide free con­tra­cep­tive cov­er­age.

Last month, the court unan­i­mously re­jected the govern­ment’s ar­gu­ment that po­lice be al­lowed to search Amer­i­cans’ cell­phones with­out war­rants. The court also struck down a Mas­sachusetts law es­tab­lish­ing a 35-foot no-protest zone around abor­tion clin­ics — a case in which the ad­min­is­tra­tion filed a brief sup­port­ing the statute.

De­spite the mount­ing losses, the White House re­fused to con­cede a poor show­ing.

“I’d hes­i­tate to make a broad as­sess­ment like that from this podium,” White House press sec­re­tary Josh Earnest told re­porters Mon­day, though he did say the ad­min­is­tra­tion strongly dis­agreed with the high court’s de­ci­sion in the con­tra­cep­tion case.

While Repub­li­cans have been ea­ger to take shots at the ad­min­is­tra­tion as its le­gal losses pile up, some ju­di­cial an­a­lysts say they may be go­ing too far.

Sen. Ted Cruz, Texas Repub­li­can, said re­cently that the 13 unan­i­mous rul­ings against the ad­min­is­tra­tion rep­re­sent “re­jected pres­i­den­tial abuse of power.”

Other than the case in­volv­ing re­cess ap­point­ments, the de­ci­sions have had lit­tle to do with ex­ec­u­tive power.

The court’s de­ci­sion last week in the Mas­sachusetts case on protests at abor­tion clin­ics cen­tered on a state law, not pres­i­den­tial ac­tions, even though the govern­ment backed the law.

Repub­li­cans still cited the de­ci­sion as a ju­di­cial re­buke of Mr. Obama, say­ing the pres­i­dent ex­ceeded his con­sti­tu­tional author­ity.

“I think it’s tempt­ing to take Speaker Boehner’s law­suit and try to build on that and say there is an abuse of pres­i­den­tial power here, and even the Supreme Court thinks so. But I don’t think those claims are be­ing borne out,” said Stephen Wer­miel, a con­sti­tu­tional law pro­fes­sor at Amer­i­can Univer­sity in Wash­ing­ton. “Some of the losses — it’s silly to at­tribute them to the ad­min­is­tra­tion.”

AS­SO­CI­ATED PRESS PHO­TO­GRAPHS

In the more than five years that Pres­i­dent Obama has been in of­fice, the court has re­jected the govern­ment’s ar­gu­ment with a 9-0 de­ci­sion 20 times. That puts the Obama ad­min­is­tra­tion on pace to greatly ex­ceed re­cent pre­de­ces­sors in terms of ju­di­cial losses.

Chief Jus­tice John G. Roberts Jr. cor­ralled unan­i­mous votes on pri­vacy and re­cess ap­point­ments — cases that dealt sting­ing de­feats to Mr. Obama, him­self a lawyer and for­mer lec­turer on con­sti­tu­tional law.

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