“Radical Libertarianism Reshaping The Bench”: John Roberts’ Supreme Court Is The Most Meddlesome In U.S. History
For the third straight July, the Supreme Court left court-watchers scratching their heads about whether the Court lived up to its reputation as the “most conservative” in generations, if not ever. In the New York Times, former Obama Acting Solicitor General Neal Katyal hailed “The Supreme Court’s Powerful New Consensus.” Liberal experts tended to echo Slate’s Emily Bazelon in dismissing such revisionists as hoodwinked by “the devastating, sneaky genius of John Roberts’ [superficially anodyne but right-tilting] opinions.”
What strikes me is a libertarian streak in the justices’ opinions. On civil liberties, where right- and left-leaning libertarians concur—in particular, Fourth Amendment protection for smartphones—the Court moved the law to the left. But, likewise reflecting libertarian ascendance, the Court continues to veer sharply right on issues touching on corporate autonomy and regulation of business. Most importantly, this term’s cases confirm a critical but generally overlooked facet of twenty-first century libertarian jurisprudence. It is not just about reclaiming what Randy Barnett famously called the “lost Constitution.” Less visibly but often more consequentially, libertarian academics, advocates, and judges have long advocated thrusting the courts into much more aggressive roles in resolving the details of messy non-constitutional disputes—in interpreting statutes, and, in particular, in scrutinizing and micro-managing executive and regulatory agencies’ applications of the laws they administer. Here, the not-always-tacit agenda has been to gum up the works of progressive programs that, realistically, cannot be repealed or invalidated outright.
A window onto this Court’s reactionary drift opened during a testy exchange at an oral argument six months ago on January 21. The case was Harris v. Quinn, which involved a challenge to the authority of state governments to permit public employee unions to collect fees covering the costs of negotiating on behalf of non-members they are legally required to represent. Choosing her words pointedly, Justice Elena Kagan questioned the challenging non-members’ counsel:
Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State, and people have disagreed. … And is it fair to say that you’re suggesting here … that, for 64 years, people have been debating the wrong question … because, in fact, a right-to-work law is constitutionally compelled? (emphasis added)
The challengers’ counsel, a staff attorney for the National Right to Work Legal Defense Foundation, did not flinch. “In the public sector,” he responded, “Yes, … compulsory fees are illegal under the First Amendment.”
When the Court finally released its decision, on the final day of the term, June 30, it did not exactly dial back those 64 years, at least not for all public workers and workplaces nationwide. Justice Alito’s 5-4 majority decision barred the imposition of union fees on non-members, but only with regard to a novel category he created—“personal homecare assistants,” or nurses and other providers paid by state governments with Medicaid funds, to treat disabled and poor elderly patients in their homes.
But what matters about this case is not the answer the conservative majority gave on its particular facts, but the question they chose to answer. As Justice Kagan noted, that question—whether state (or federal) law can authorize public employee unions to distribute the costs of representation across all employees in a bargaining unit, while requiring the union to represent non-union members as well as members—had for generations been completely off the table. The conservative majority has put that fundamental understanding in play, by transmuting the First Amendment—heretofore understood as a safeguard for civil liberties—into a functional regulator of economic relations, and de-stabilizing nearly three quarters of a century of constitutional precedents. These precedents are not technicalities. On the contrary, were the case-law otherwise, all employees, union members as well as non-members, would have every incentive to “free-ride,” and reap the benefits of union representation without sharing in the costs. Public employee unionism would be weakened, if not crippled.
The doctrinal counter-revolution is not confined to labor-management relations. Prior to the New Deal, the Supreme Court pushed an anti-regulatory agenda in the name of safeguarding individuals’ economic liberty. The FDR Court repudiated this tradition in a 1938 decision about milk regulation, United States v. Carolene Products. Carolene Products laid down a landmark a rule: Economic regulatory legislation “is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Harris v. Quinn flagrantly violates that rule. States surely have a “rational basis” for ensuring fair-share contributions from non-union public employees.
After 1938, through the balance of the twentieth century, and, indeed, well into the twenty-first, Supreme Court majorities never overtly and, only rarely, departed from or implicitly challenged the hands-off economic regulation mandate of rational basis deference. Of course, during those decades, there were recurrent, fiery right-left battles on and about the Supreme Court. But those battles were about the extent to which the Court should actively protect individual civil and political rights, not economic rights. Only a small cadre of libertarian academics and think tanks disputed the consensus confining economic liberty to second-class constituitonal status. No more. No longer marginalized, libertarian-inspired legal ideas are now a force to be reckoned with. That tectonic shift was first proclaimed two years ago in the Court’s opinions in the challenge to the Affordable Care Act’s individual mandate and expansion of Medicaid, even though Chief Justice John Roberts’ controlling opinion largely upheld the law. This term’s decisions reinforce that trend.
Although Harris v. Quinn invoked the Constitution to trump an incontestably rational regulatory law, other important decisions about regulation and the economy this term involved ordinarily below-the-radar questions of statutory interpretation and judicial deference to agency decisions. And libertarian academics’ and advocates’ enthusiasm for replacing Carolene Products-style rational basis deference with active judicial micro-management left an imprint in nearly all of them. For example, reviewing the first tranche of President Obama’s global warming program, Justice Scalia, writing for a seven-member majority, struck down the regulation at issue, and castigated EPA for reading an exception into an assertedly “unambiguous” statutory provision. But the Court then read a similar exception into another statutory term, that yielded 97 percent of the on-the-ground results the agency’s version would have achieved. How could EPA’s version have no defensibly rational basis, and why would the justices not simply defer, if it differed so immaterially from theirs?The answer seems to be that Scalia and his colleagues felt it important to assert their power to substitute their judgment for the agency’s—EPA or any other agency—almost for the sake of doing so.
Similarly, in its two decisions reviewing Affordable Care Act contraception regulations, the conservative majority second-guessed extraordinarily granular Executive Branch policy and factual determinations, substituting their own ideas for configuring a compromise to mesh competing policy goals attributed to two statutes, the ACA and the Religious Freedom Restoration Act. The majority suggested that alternative administrative solutions were readily available, that would, consistent with the Court’s orders, permit employees and students, in institutions averse to including contraception coverage in their health insurance plans, “to obtain, without cost, the full range of FDA approved contraceptives.” Dissenting Justice Sonia Sotomayor, and many health experts, vehemently disagreed. The lasting lesson from these cases is not which side is right, but that the conservative justices are so eager to reach to tackle these policy and factual kerfuffles at all. Such judicial intrusions, into the nitty-gritty of implementing complex, often conflicting statutory provisions, mock landmark decisions—by the Rehnquist Court no less than its more liberal predecessors—that long enforced and repeatedly reaffirmed the post-New Deal consensus mandating judicial restraint and deference to Congressional and Executive legislative and policy judgments.
Looking to the future, most of the battles over preserving the progressive jurisprudence that kept hostile judges from crippling the New Deal, the Great Society, and—so far—the major products of President Barack Obama’s tenure, could well be fought on these non-constitutional fronts. Already, some observers have noted that in several end-of-term opinions, justices on both sides of the Court’s ideological divide have sparred elaborately about methodologies for interpreting statutes and reviewing agency actions. Could these academic-seeming debates constitute “shadow-boxing” over potential high-voltage controversies that could wind up on next year’s docket and beyond? A particular target for speculation in this vein, especially on the right, is a brace of pending cases currently poised for decision in two courts of appeal, in which ACA opponents hope to shut down Healthcare.gov. They claim that a four-word phrase in the Act must be read in isolation, to permit only state-run exchanges, not federally run exchanges in the 36 states that have opted out of setting up exchanges of their own, to provide tax credits and subsidies for low and moderate income applicants for health insurance. So far, that claim has been rejected by the two district courts yet to rule, as contrary to what even Justice Scalia, in his Clean Air Act global warming decision opinion this June, acknowledged as the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Much could depend on whether Justice Scalia and the rest of his conservative colleagues choose to take that “fundamental canon” seriously, if and when the fate of Obamacare is once again on their griddle.
By: Simon Lazarus, The New Republic, July 10, 2014
“Coward Of The House”: John Boehner’s Pathetic Lawsuit Reveals His Weakness
Never underestimate the cynicism of House Speaker John Boehner. The day after he told reporters he opposed the impeachment of President Obama, he announced plans to go ahead with an unprecedented lawsuit, on grounds so puny as to be laughable. The speaker will sue the president, he says, for postponing the imposition of the Affordable Care Act’s employer mandate for a year and waiving the fine it imposed.
So: after all of Boehner’s huffing and puffing about the president’s lawlessness, after an op-ed that claimed Obama had abused his power on “a range of issues, including his health care law, energy regulations, foreign policy and education,” he wants to sue him for not implementing a minor ACA provision Republicans are known to oppose, within a law they want to repeal entirely? And as NBC’s First Read notes, Boehner didn’t advocate suing President Bush in 2006 when he waived penalties for low-income seniors who missed the deadline to sign up for new Medicare prescription benefits.
Clearly Boehner’s silly lawsuit is a sop to his party’s right-wing base. But he’s throwing table scraps while the wing nuts want red meat. The GOP establishment, such as it is, has apparently decided impeachment is a bad political detour for the party. Yet few of the conservative voices now speaking out against impeaching the president have the courage to say: “It’s because he hasn’t done anything that would be grounds for impeachment.” Instead, they focus on the terrible politics for their party in a midterm election year when they’re expected to do well.
Boehner merely said “I disagree” when asked about Sarah Palin’s Facebook rant demanding that the House GOP impeach Obama – and then he fleshed out his alternative legal plan. The man who gave us Sarah Palin, Sen. John McCain, said Thursday: “There are not the votes here in the United States Senate to impeach the president of the United States and I think that we should focus our attention on winning elections.”
A Wall Street Journal anti-impeachment editorial did acknowledge, though almost in an aside, that “while Mr. Obama’s abuses of executive power are serious, they don’t rise to that level.” But the bulk of “The Impeachment Delusion” was spent on the bad politics of such a move, calling it “inherently a political process that at the current moment would backfire on Republicans,” given they have a decent chance of retaking the Senate.
Meanwhile, the WSJ is hyping Boehner’s lawsuit as essential to rein in Obama’s wanton use of “imperial powers.” The worshipful editorial, with the unintentionally hilarious headline “Boehner stands up,” opened “All due credit to John Boehner.”
That ought to win over the party’s right wing base. Then again, probably not.
The wimpiness of the GOP establishment just furthers the sense of the party’s implacable Obama haters that they have a claim against this illegitimate president, but the leadership is just too spineless and craven to drive him out of the White House. If he’s using “imperial powers,” as the Journal says, and he’s “changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold,” as Boehner claims, the House has a remedy, and it’s impeachment.
Establishment Republicans are praising Boehner’s lawsuit for finding a novel way to solve the problem that’s stymied all other congressional attempts to sue the president: their utter lack of standing to bring such a suit, given that they can’t show they’ve been harmed by the action at issue. Backed by right wing scholars David Rivkin and Elizabeth Foley, the speaker will make the case that since it’s not possible for any private individual to show harm in the case of the employer mandate, the courts should let Congress step in.
Few legal experts outside the confines of conservativism are convinced.
“I see this every day now, being covered as if it’s real, as if it’s somehow not a joke,” Yale law professor Akhil Reed Amar told Vox.com. “But can they name a single successful lawsuit in American history that is of close precedent to what they are proposing?” Amar doesn’t know of one. “At a certain point, I get to call Birther-ism. I get to call bullshit.”
I’ve been thinking about Birtherism a bit here, too. On the one hand, it’s great that Boehner quickly scotched Palin’s talk of impeachment. On the other, it would have been nice had he, and the rest of the party leadership, done the same when Birtherism, and talk of the president as Kenyan Muslim Kenyan usurper, broke out on the right wing fringe in 2009.
But Boehner refused to stand up to his party’s Birthers and Obama-is-a-Muslim loons. “It’s not my job to tell the American people what to think,” he said on NBC’s “Meet The Press” shortly after being elected speaker in 2011. Yet now he thinks it’s his job to tell the American people to think that the president is abusing his powers. Boehner’s stunt is impeachment-lite, or impeachment for cowards. Instead of quelling the fire burning in the party base, it is likely to stoke it.
By: Joan Walsh, Editor at Large, Salon, July 11, 2014
“The GOP Takes A Risk Celebrating Contraception Ruling”: What They May Not Fully Appreciate Is What Happens Next
The U.S. Supreme Court narrowly ruled this morning against the Affordable Care Act’s contraception policy, agreeing that “closely held” corporations can deny contraception coverage under the First Amendment. Republican critics of “Obamacare” are thrilled, though I’m not sure if they’ve thought this through.
Senate Minority Leader Mitch McConnell (R-Ky.), for example, couldn’t be more pleased.
“Today’s Supreme Court decision makes clear that the Obama administration cannot trample on the religious freedoms that Americans hold dear. Obamacare is the single worst piece of legislation to pass in the last 50 years….”
House Speaker John Boehner (R-Ohio) is equally pleased.
“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.”
Keep in mind that Republicans haven’t simply sat on the sidelines of this fight, hoping the court’s Republican-appointed justices would rule in their favor. On the contrary, they’ve been active participants in the debate, filing briefs with the Supreme Court urging this outcome, proposing legislation to undo the ACA policy, and in some cases, even threatening to push a constitutional amendment if the Hobby Lobby ruling had gone the other way.
As a result, GOP lawmakers and their allies are clearly delighted today, basking in the glow of victory.
What they may not fully appreciate, at least not yet, is what happens next: the political fallout.
Republican opposition to contraception access has been largely reflexive in recent years: “Obamacare” makes birth control available to Americans without a copay; “Obamacare” is evil; ergo the right must fight against contraception access.
The trouble is, the American mainstream and GOP policymakers really aren’t on the same page. The latest national polling reinforces the fact that most of the country wanted today’s ruling to go the other way.
Let’s revisit a piece from March, following oral arguments. Do Republicans believe it’s a winning election-year message to tell many American women their access to contraception must be based in part on their bosses’ religious beliefs? Because that’s the line the party is taking right now. They wouldn’t put in those terms, exactly, but as a practical matter, that’s effectively the real-world consequence of the Republican position.
This came up quite a bit in 2012, when congressional Republicans championed a measure from Sen. Roy Blunt (R-Mo.) that would have empowered private-sector employers to deny health services that business owners find morally objectionable.
In one of the presidential candidate debates, President Obama hammered Mitt Romney over his support for the Blunt Amendment. The GOP candidate, the president said, argued “employers should be able to make the decision as to whether or not a woman gets contraception through her insurance coverage. That’s not the kind of advocacy that women need.”
Romney balked, saying, “I don’t believe employers should tell someone whether they could have contraceptive care or not. Every woman in America should have access to contraceptives.”
The trouble seemed to be that Romney heard Obama’s description of Romney’s own position and was repulsed. But in reality, both Romney and his running mate endorsed a policy that would leave contraception decisions for millions of workers in the hands of employers.
And if memory serves, the gender gap didn’t do the GOP any favors once the votes were tallied.
Two years later, the Republican position hasn’t changed. More than two-thirds of U.S. women oppose allowing corporations to drop contraception from their health plans due to spiritual objections, but GOP leaders are nevertheless saying the exact opposite.
To be sure, what matters most this morning is the ruling itself and its impact on the public. But as we come to terms with the decision and legal experts sort out its scope, it’s only natural to consider the electoral impact. And with this in mind, Republicans are taking a gamble, whether they realize it or not.
Democratic campaign operatives’ single biggest concern this year is getting left-of-center voters to show up and cast a ballot this fall. Last week, some Dem strategists said they were particularly concerned about whether unmarried women would get engaged this cycle.
Watching Republican-appointed justices to limit contraception access, while Republican lawmakers cheer them on, may be just what Democratic campaign officials needed.
A Democratic leadership aide told the Washington Post last fall, “This could be very helpful with younger and middle aged women…. The idea that a boss calls the shots on a woman’s ability to get free birth control is really powerful. This is the kind of issue that could help change the ACA debate by reminding women in particular that at its core it’s all about access and affordability.”
Congratulations, Republicans, you’ve won your big case at the Supreme Court, and positioned yourself this election as the 21st century political party that supports restrictions on contraception access. The party saw a political landmine and decided to do a victory dance on it. We’ll see how this turns out for them.
The question couldn’t be more straightforward: Dear GOP candidates, do you agree with the Supreme Court on contraception access or not? The DCCC and DSCC clearly hope that in most instances, Republicans endorse today’s ruling.
By: Steve Benen, The Maddow Blog, June 30, 2014
“John Boehner Deflects Attention By Suing The President”: How House GOP Circumvents Its Responsibility To Engage In Governing
President Obama was generous on Thursday in referring to Speaker John Boehner’s proposed lawsuit against him as a “stunt,” a word generally used to mean a playful attempt to get attention. In fact, the suit is a mean-spirited attempt to deflect attention — specifically from the House’s refusal to engage in the act of governing.
For the foreseeable future, there will be no action to boost the economy, or help minimum-wage workers, or extend unemployment insurance, or address climate change. Immigration reform is dead. The most basic appropriations bills are likely to get bogged down in Republican attempts to promote coal burning and rein in the Clean Water Act. There is already talk of another in an endless series of stopgap spending bills, the surest sign of a non-functioning Congress. And the Tea Party would love nothing more than another shutdown fight or even impeachment hearings.
Mr. Boehner’s lawsuit, which he said will challenge the president’s use of executive authority, was designed in part to appease the far-right corner. But more substantively, it is part of Mr. Boehner’s long-running strategy to pretend there is a legitimate reason for the years of obstruction.
He can’t very well explain to the public that the real reason there has been no action on immigration reform is because large swaths of the Republican base dislike Hispanic immigrants. And so he had to construct a way to blame Mr. Obama for the inaction.
“Speaker Boehner has been very clear about this: He wants to fix America’s broken immigration system,” his spokesman, Michael Steel, said last month. “But no one trusts the White House to enforce the law as written.” He can’t be trusted because he allowed the children of immigrants who came to this country illegally to remain without fear of deportation, an executive action that may be on the list of particulars in the lawsuit. (Mr. Boehner hasn’t said which actions prompted him to sue.)
Coal-state lawmakers can’t admit they would rather foul the air than hurt the short-term interests of their states’ biggest industries and employers, so they pretend they are angry about a procedural matter: Mr. Obama’s “overreach” in directing environmental regulators to enforce carbon standards without the permission of Congress.
And Republicans care not in the least about the substance of the administration’s actions in delaying parts of the Affordable Care Act; instead they see each administrative action as an opportunity to portray the president as tyrannical. “We didn’t elect a monarch or a king,” Mr. Boehner told the House in a letter on Wednesday outlining his legal plans.
Royalty is a laughable way to describe a president who had to struggle to get his own aides confirmed by the Senate, and was forced to use an experimental legal maneuver to keep entire agencies functioning. Mr. Obama’s attempt to use recess appointments to get around the Republican refusal to confirm any members to the National Labor Relations Board, regardless of qualification, was slapped back by the Supreme Court on Thursday. Republicans immediately claimed the court, too, has become angered by the president’s imperialism, refusing to acknowledge the president had acted out of desperation to get around their own unprecedented level of resistance.
Mr. Boehner’s diversion is the ultimate in frivolous lawsuits — a subject he knows well, since he frequently applies the word “frivolous” to the lawsuits he doesn’t like, including those fighting discrimination against gays and lesbians in the workplace. But it is likely to fail in both its legal objective and its larger purpose. Americans are pretty good at detecting phony excuses to get out of work.
By: David Firestone, Taking Note, Editorial Page Editors Blog, The New York Times, June 27, 2014
“This President Should Be Able To Do Absolutely Nothing”: In Dramatic Pointless Gesture, Boehner To Sue Obama
Pretty much since the moment Barack Obama finished speaking the oath of office in January 2009, Republicans have been charging that he was abusing his power, exceeding his authority and acting like a tyrant. You might remember that for a time in those early days, conservatives (led by Glenn Beck) were obsessed with the idea that Obama had appointed a group of “czars” who were wielding unaccountable power to implement all sorts of nefarious schemes. They were unable to say how a “czar” differed from “a person who works in the White House,” and that particular iteration of their outrage faded, but the underlying suspicion only grew. In the years since, the list of alleged usurpations of authority has grown daily, the charge that Obama is “lawless” becoming a constant.
At its root is the idea that Barack Obama’s presidency is inherently illegitimate, and whatever he does in that office must be illegal, or nearly so. This often translates into complaints about process, so that even when they lose, Republicans charge that the game was rigged. For instance, conservatives have said thousands of times that the Affordable Care Act, despite being probably the most exhaustively debated piece of legislation in decades, was “rammed through” Congress before anybody realized what was happening. Actions that all presidents undertake, like making recess appointments, signing executive orders, or simply having agencies write regulations, become yet more evidence of Obama’s horrific authoritarian rule.
It’s safe to say that many if not most Republicans would be eager to impeach Obama were such a move not a guaranteed political disaster for them. So John Boehner has decided to pursue a kind of impeachment-lite, announcing that the House of Representatives will be suing the president for abusing his power. “The Constitution makes it clear that the president’s job is to faithfully execute the law,” he said. “In my view, the president has not faithfully executed the law.” It’s impossible to tell at this point whether the suit has any merit, because Boehner didn’t actually cite any specific transgressions the suit will allege.
But my guess is that the suit will throw in every process complaint the Republicans have had over the last five years, because it’s mostly about Boehner’s right flank, both in Congress and in the Republican electorate. Even if the suit gets thrown out of court, Boehner will still be able to say to the eternally angry members to his right, “Hey, I’m the guy who sued Obama! I hate him as much as you do!”
It’s irresistible to charge Republicans with hypocrisy, especially given the fact that they were unconcerned when the Bush administration pushed so vigorously at the limits of presidential power. Bush and his staff regularly ignored laws they preferred not to follow, often with the thinnest of justifications, whether it was claiming executive privilege to ignore congressional subpoenas or issuing 1,200 signing statements declaring the president’s intention to disregard certain parts of duly passed laws. (They pushed the limits of vice presidential power, too—Dick Cheney famously argued that since the vice president is also president of the Senate, he was a member of both the executive and legislative branches, yet actually a member of neither and thus not subject to either’s legal constraints. Seriously, he actually believed that.)
Needless to say, at the time Republicans were perfectly fine with these moves, because when the Bush administration was doing these things, it was in support of policies they favored. And that’s how it goes: Process complaints are almost always a cover for substantive disagreement. A backroom deal made to pass a piece of legislation you agree with is just how the sausage gets made; a deal made for a piece of legislation you disagree with is evidence of deep corruption. A filibuster of a bill you oppose is a principled use of established procedures; a filibuster of a bill you favor is cynical obstructionism. And it’s a little rich to hear congressional Republicans wail that Obama has subverted their will, when their will is that this president should be able to do absolutely nothing.
To be clear, I’m not saying that it’s impossible that there could be any merit to whatever claims Boehner and his colleagues will make. There may have been situations in which Obama pushed presidential prerogatives beyond what the law and the Constitution allow, which the courts will decide. But this question comes up with every president, both because they all want to pursue their goals and try to find every means at their disposal to do so, and because the limits of that power are somewhat vague and complex. As it happens, in numeric terms, Obama has been far more restrained than his predecessor; he has issued fewer executive orders than other recent presidents, and has also used signing statements only occasionally (although recently he cited one of his signing statements as justification for failing to notify Congress 30 days before the release of Taliban prisoners in exchange for Bowe Bergdahl).
The numbers aren’t really the point, though; the question is whether Obama actually ever exceeded his authority. This lawsuit may help us understand whether that occurred, and the result might set a useful precedent to guide future presidents. But I doubt it. More likely, it’ll be an intensely partisan document whose purpose is to shake a fist at the president Republicans so despise, and it’ll get tossed out of court and thrown in the dustbin where it belongs, one more futile, angry gesture from an opposition that has lost the ability to offer anything else.
By: Paul Waldman, Contributing Editor, The American Prospect, June 26, 2014
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