As President Obama maneuvers to advance his agenda around unrelenting opposition from House Republicans, he is accelerating a dynamic that could reshape the power balance between the White House, Congress, and the courts long after he's gone.
Continuing a pattern followed by George W. Bush, Obama is increasingly implementing his priorities through unilateral action, like executive orders and regulation, rather than legislation. That choice diminishes the ability of congressional opponents to derail Obama's ideas. But it increases his risk that the courts—in particular the five Republican-appointed Supreme Court justices—will block him. In other words, as he reduces his vulnerability to John Boehner, Obama is increasing his exposure to John Roberts.
This dynamic didn't start with Obama and won't likely end with him. As polarization stalemates Congress, it's inevitable that presidents will rely more on executive action—as Bush did on national security, and Obama is now doing on domestic issues. That is heightening the courts' role in deciding how far presidents can stretch their authority. "The implication of more gridlock is more of a role for the Supreme Court in sorting out these big disputes," says Donald Kettl, a University of Maryland professor of public policy.
The roots of this trend run deep. The first is that voters have granted one party unified control of the White House, House, and Senate for only 12 of the past 46 years, far less than in previous generations. Except for brief periods (like Obama's first two years), that's meant presidents have been unable to advance their agenda legislatively without winning some support from the other party.
That frequently worked through the 1970s and 1980s. But after the flurry of deals between Bill Clinton and congressional Republicans in the mid-1990s, such cooperation has virtually vanished as legislators in each party, especially the GOP, have faced growing pressure from their base not to compromise with a president on the other side. While that trend rippled through Clinton's final years and most of Bush's presidency, it has roared to new heights under Obama.
Among other things, congressional Republicans have expanded use of the filibuster; shut down the government and repeatedly threatened default; fought implementation of health reform with the most persistent legislative and litigious rearguard campaign against a national initiative since Brown v. Board of Education; and, for the first time, sued a president for allegedly abusing his executive authority. House Republicans have repeatedly refused to vote on Obama priorities that passed the Senate, like workplace rights for gays and immigration reform.
While Obama, like Bush, can be legitimately faulted for abandoning hope of reaching bipartisan accommodations (and Senate Democrats have pursued their own provocations), it's disingenuous to ignore that backdrop for the president's turn toward greater executive action. In both volume and scope, Kettl says, Obama is actually asserting less executive authority than Bush or Richard Nixon. But there's no question that Obama is acting alone on more consequential issues than earlier, including climate change and health care—with the potential looming for a historic executive order to provide legal status for millions of undocumented immigrants.
The recent House lawsuit tacitly acknowledges that opponents are less likely to block Obama's initiatives in Congress than the courts. Legal scholar Jeffrey Rosen notes that courts have judged executive power primarily through the standards set in the Supreme Court's 1952 Youngstown Sheet & Tube Co. v. Sawyer decision that stopped President Truman from seizing steel mills to keep them operating during the Korean War. While the courts have occasionally rebuked presidents for defying Congress, that decision's famous framework—which said the president operated in "a zone of twilight" when he acts without explicit congressional approval or disapproval—has generally led the judiciary to avoid interfering "in explicit squabbles between the [other] two branches," notes Rosen, president of the nonpartisan National Constitution Center. "The question is will the courts … hold to this historic pattern?"
The Roberts Court could intervene more than its predecessors to limit executive power. It rebuffed Bush's unilateral action on security issues like establishing military tribunals to try suspected terrorists. And it recently blocked Obama's reach for greater authority on recess appointments. But Obama nonetheless may be better off taking his chances with the Court than the House. Boehner's greatest risk is that the GOP base won't consider him confrontational enough. But, after the backlash to the Justices' role in deciding the 2000 election, many believe Roberts sees his greatest risk as the Court appearing too confrontational with political leaders. "That colors how each man sees his role," notes one former high-ranking Democratic legal official.
Still, Roberts's sense of institutional self-preservation is a thin reed for presidents to lean on. With presidents from each party likely to assert more executive power, the stakes will rise for both sides in controlling the courts that limit that power. That's why one of the most relevant facts in the 2016 presidential election may be that three Supreme Court Justices—Republican appointees Antonin Scalia and Anthony Kennedy and Democratic-appointed Ruth Bader Ginsburg—will be at least 80 when Obama's successor is sworn in.
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