Hamilton, Madison, and Jay

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Location: Mesa, Arizona, United States

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Tuesday, July 6, 2010

The coming clash: Executive versus Judiciary

HT to Professor Glenn Reynolds

The LA Times has the story today about the impending battles that Barry and the Supreme Court will be running into in the years to come. Granted, the Times is liberal in its news coverage and commentary (and they get it wrong with the justices that are "conservative" as Justice Kennedy isn't a solid conservative), but they do get it right with the coming collision course that is completely unavoidable:

The Supreme Court wrapped up its term last week after landmark decisions protecting the right to have a gun and the right of corporations to spend freely on elections. But the year's most important moment may have come on the January evening when the justices gathered at the Capitol for President Obama's State of the Union address.

They had no warning about what was coming.

Obama and his advisors had weighed how to respond to the court's ruling the week before, which gave corporations the same free-spending rights as ordinary Americans. They saw the ruling as a rash, radical move to tilt the political system toward big business as they coped with the fallout from the Wall Street collapse.

Some advisors counseled caution, but the president opted to criticize the conservative justices in the uncomfortable spotlight of national television as Senate Democrats roared their approval.

[Let me inject right here, right now, that it was improper for the president to do that -- singling out the justices in public -- for the decision they made in Citizen's United. You've got a problem with it? Fine. You bite your tongue and keep your thoughts in the privacy of the White House. You don't go around basically calling out the Supreme Court on decisions they make, decisions they are tasked to carry out. It was unprofessional, petulant, incompetent, amateurish, and unfitting for a sitting president, and his congressional majorities, to do such a thing.]

Chief Justice John G. Roberts Jr. is still angered by what he saw as a highly partisan insult to the independent judiciary. The incident put a public spotlight on the deep divide between the Obama White House and the Roberts court, one that could have a profound effect in the years ahead.

The president and congressional Democrats have embarked on an ambitious drive to regulate corporations, banks, health insurers and the energy industry. But the high court, with Roberts increasingly in control, will have the final word on those regulatory laws.

Many legal experts foresee a clash between Obama's progressive agenda and the conservative court."

Presidents with active agendas for change almost always encounter resistance in the courts," said Stanford University law professor Michael W. McConnell, a former federal appellate court judge. "It happened to [ Franklin D.] Roosevelt and it happened to Reagan. It will likely happen to Obama too."

Already, the healthcare overhaul law, Obama's signal achievement, is under attack in the courts. Republican attorneys general from 20 states have sued, insisting the law and its mandate to buy health insurance exceed Congress' power and trample on states' rights.

Two weeks ago, a federal judge in New Orleans ruled Obama had overstepped his authority by ordering a six-month moratorium on deep-water drilling in the Gulf of Mexico.

On another front, the administration says it will soon go to court in Phoenix seeking to block Arizona's controversial immigration law, which is due to take effect July 29. Republican Gov. Jan Brewer said Arizona would go to the Supreme Court, if necessary, to preserve the law.

As chief justice, Roberts has steered the court on a conservative course, one that often has tilted toward business. For example, the justices have made it much harder for investors or pension funds to sue companies for stock fraud.

Two years ago, the court declared for the first time that the gun rights of individuals were protected by the Constitution. This year, the justices made clear this was a "fundamental" right that extended to cities and states as well as federal jurisdictions.

Since the arrival in 2006 of Justice Samuel A. Alito Jr., Roberts has had a five-member majority skeptical of campaign funding restrictions. At first, he moved cautiously. Roberts spoke for the majority in 2007 in saying that a preelection broadcast ad sponsored by a nonprofit corporation was protected as free speech even though it criticized a candidate for office.

Last year, the court had before it another seemingly minor challenge to election laws by a group that wanted permission to sell a DVD that slammed Hillary Rodham Clinton when she was running for president in 2008. This time, however, Roberts decided on a much bolder move.

As they say, read it all, folks. The LA Times has hit the nail on the head. Barry's agenda is going to be challenged left-and-right in the federal courts. Will there be setbacks? Sure. More than likely those in opposition to this power-grabbing agenda will run into liberal judges that side with the administration. But given the hostility towards the federal courts from the White House, these appellate courts and the Supreme Court will be more likely to take up these cases as opposed to passing them over.

That's not to say the courts will suddenly become political. However even they can see that there is something wrong with this president's agenda, and it spells disaster for the nation if it's allowed to continue. Remember, the role of the federal courts was to be the final check-and-balance against an overreaching federal government, protecting the rights and liberties of the citizens of this nation. Those on the Supreme Court, Chief Justice John G. Roberts specifically, understands this concept, and agrees with it.

There will be a fight between the Executive and the Judiciary in the next couple of years, and if the decisions come down on the side of the Constitution, Barry isn't going to be a happy person. But it will further show this nation that Mr. Constitutional Scholar doesn't know his @$$ from a hole in the ground. Just because he views the Constitution his way doesn't make it so, and he'll have to convince the courts to see things his way. He won't succeed because he doesn't know a bloody thing about the founding document, what it entails, what it means, and what it does for the people of this nation. He'll never get it because the originalist/textualist interpretations of the Constitution are anathema to his political ideology. He is hostile towards the document that guarantees our rights and liberties because, in his opinion, it only speaks of negative liberties with regard to government power.

That, Mr. President, was the intention of our Founding Fathers. I guess he missed that week in history class.

Publius II


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