The Court, Not Congress, Is Obama’s Biggest Obstacle

The president’s push for executive action increases his chances of encounters with the judiciary.

Members of the US Supreme Court pose for a group photograph at the Supreme Court building on September 29, 2009 in Washington, DC.
National Journal
Ronald Brownstein
Aug. 14, 2014, 2:05 a.m.

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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