One Perspective: Republicans, the courts and Obama's presidency

David Schultz, The Daily Record Newswire

What the Republicans cannot do to President Obama in Congress with legislation they are trying to do to him in court through litigation. As is becoming clear, the fate of the Obama presidency, and perhaps the direction of America, increasingly hinges on what the U.S. Supreme Court and other federal courts will do over the next few months.
By now it is clear the Republican Party and the president do not agree on much, including a range of policies on climate change, immigration and health care. Republicans and the president are also far apart on issues such as same-sex marriage, voting rights and almost anything the president spoke of in his January State of the Union address. The president and congressional Republicans live in alternative policy universes, influenced by contrasting political bases that view the role of government in society in contrasting ways.

From literally day one, Republicans have refused to cooperate with the president. Even in defeat, instead of conceding loss, they have kept up the fight — which explains the 40+ votes to repeal the Affordable Care Act. Congress may lose in the showdown over defunding the president’s executive order granting temporary amnesty for undocumented immigrants, but that may not matter. Instead, parallel to the legislation strategy has been a litigation one that has so far been successful in limiting the president.

American government 101 says separation of powers defines the respective powers of the president, Congress, and the judiciary. Simply put, Congress makes the law, the president enforces it, and the courts interpret it. Throw in the idea of checks and balances and Congress’ power to make laws requires presidential ascent or a two-third vote to overcome the veto. But somewhere between checks and balances and separation of powers something perverse is happening: The Supreme Court under Chief Justice John Roberts has become a major policy player and game changer for the Obama presidency.

The courts are not supposed to make policy. They are not supposed to effect social change. Their job is to simply interpret the law and not substitute their views for that of the electorally accountable branches of government.

Alexander Hamilton declared this too in Federalist Paper 78, in which he stated that the Supreme Court would neither have the power of the sword nor the purse and that it would be the “least dangerous branch” of the government.

Supreme Court justices as eminent as Oliver Wendall Holmes Jr., Felix Frankfurter and William Rehnquist have declared this. And so have Republicans. All during the Warren Court era, Republican critics of the court decried its judicial activism, overstepping or second-guessing states and Congress. There was some cogency to these claims, but the court then did not so much thwart change but facilitate it when the political process had broken down, captured by prejudice or bogged down by entrenched interests.

The Republican judicial strategy of today is reminiscent of the courts in the 1930s. When FDR sought to respond the emergencies of the Great Depression and push the country in a new policy direction, conservatives sought to freeze reform by going to court. They were initially successful in fighting the first round of the New Deal, but eventually democracy prevailed.

We are now witnessing a fight similar to that of the 1930s, and again the Supreme Court seems prepared to side against the forces of change. Perhaps the biggest challenge is regarding the fate of the health care subsidies under the Affordable Care Act that are provided to the health care exchanges run by the federal government. By all accounts the appeal of the Burwell v King decision to the Supreme Court should be a slam dunk for Obama.

By using the general tools of statutory construction that include looking to the intent of the framers, giving effect to the overall meaning of the statute, deference to administrative agency construction of ambiguous legislation, and seeking to construe laws to avoid rendering absurd results, the Supreme Court should rule that these subsidies are legal.

A politically neutral Supreme Court should produce a 9-0 ruling for Obama, but it is not so clear that will happen. It is conceivable that the Court could render a 5-4 ruling striking down the subsidies, effectively destroying Obamacare because there is little chance that a Republican Congress will correct an obvious drafting error that failed to indicate that individuals getting their health care through the federal exchanges would also be entitled to subsidies.

The second major challenge to Obama came just recently with a federal judge in Texas enjoining Obama’s executive order granting temporary amnesty to potentially millions of undocumented immigrants. Yes, there are some serious questions about Obama’s authority to issue this order, but again many of the traditional tools of statutory interpretation support his authority to act. A politically neutral Supreme Court when it gets the case should resolve legislative ambiguity in favor of the president, but that too remains an open question.

The Supreme Court may ultimately decide the fate of other laws or presidential actions that will impact Obama’s political legacy if not the future of the country. After the Supreme Court already gutted part of the Voting Rights Act, it may get another shot at resolving issues about voter identification and discrimination that could determine whether Republican efforts at a Second Great Disenfranchisement (the first being the Jim Crow era after Reconstruction ended) will be successful.

In the courts are also challenges to many Obama initiatives on global warming. Finally, while not an Obama policy, the future fate of the same-sex marriage in America rests with the Supreme Court in Mata v. Holder.

Nine individuals control the policy legacy of the Obama administration. They also seem to control destiny and capacity of this country to change and respond to pressing needs of the 21st century. What will be interesting to see is whether the Supreme Court can rise above its partisan views and act neutrally.

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David Schultz is a professor of political science at Hamline University in St. Paul.

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