Calling Mssrs Epstein and Yoo, Esquires
From "Obama and Supreme Court may be on collision course" in today's Los Angeles Times:
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.
"Collision course?" Do Ricochet's own legal experts agree? If the collision between Franklin Roosevelt and the Supreme Court represents a ten--the Court at first blocked Roosevelt's New Deal, prompting Roosevelt to counter with a Court-packing plan, and the Court itself, finally, to back down--if that collision represents a ten, how would you rate the current circumstance?
- Comment (5)
- · Quote
- · UnfollowFollow (3)
Comments :
Jun '10
Re: Calling Mssrs Epstein and Yoo, Esquires
I'm not sure if this rates a ten, but I will give you a story that does. Netanyahu met with Obama today. Our president says, "our bond with Israel remains unbroken." Did Netanyahu come to Washington to present a timetable for the expected strike against Iran?
I recall VDH stating last year that he rated the strike 50/50 by March of this year. It's now July. I'm wonder what Hanson and Behr think today.
Re: Calling Mssrs Epstein and Yoo, Esquires
There is no doubt that oil and water do not mix. Ever since Barack Obama used his State of the Union address to denounce the Court's decision in CItizens United, the struggle has been out in the open. Neither side has backed down since, and neither will. But the question of how the collision will take place is not easy to determine in advance. This financial reform (if that is the right word, which it isn't) bill is a work in progress. Before anything gets to the Supreme Court there will be reams of regulations, all of which will be challenged and changed even before they reach the courts. At that point the District Court and Circuit Courts will chime in first. It could be several years before cases make it to the Supreme Court whose composition may well have changed in the interim. It is quite likely that the next confrontation will occur where we expect it least, on some current matter that sparks another round of disagreement. The symbolic issues are sure to surface before then. Don't expect Mssrs Roberts and Alito to be in attendance at the next State of the Union Address.
Re: Calling Mssrs Epstein and Yoo, Esquires
It won't be a Clash of the Titans -- if there is a conflict, Obama will lose. And lose with a whimper. If you take a purely political perspective, this is nothing like the confrontation between FDR's New Deal and the Court. Obama is not pushing a wildly popular agenda of reform. Rather, the centerpieces of his legislative program -- health care, bailouts, new deficit spending -- are deeply unpopular. Meanwhile, the Court remains high in public opinion polls, easily outpacing Congress and Nancy Pelosi or the Presidency and Barack Obama. The Supreme Court will have a great deal of room to maneuver. Something like Citizens United might temporarily get voters' blood boiling because of its anti-business tone, but campaign finance is really something that only professors can get excited about. And others where progressives are outraged, like the recent Second Amendment case, are where liberals are out of sync with the American people.
The cynical side of me even thinks that Obama might not mind if the Court becomes an obstacle. His program is not working -- the oil spill and the continuing unemployment are only feeding a wider-held impression of incompetence. The fault must not lie in the stars, or himself, but in five Justices in black robes. The problem, then, would not be the basic inability of government to manage a complex society and economy, but simply what he will portray as political opposition by conservatives.
The real question is whether the Court will actually use its freedom of action here to enforce constitutional limits on this new progressive agenda. It certainly has a basis in constitutional law, should it wish to, thanks to the Rehnquist Court. The Rehnquist Court has laid the foundations to read the Commerce Clause to block parts of Obamacare, as it has with the First Amendment and campaign finance. On that score, I am not sure whether the five-Justice majority, sometimes conservative and sometimes not, has the constitutional fortitude.
Edited on Jul 6, 2010 at 10:52amRe: Calling Mssrs Epstein and Yoo, Esquires
I agree with John that this is not 1937 again, even 1937 lite. But I am not sure that the court plays that much into the President's mind. It will not be involved in issues like BP for years to come. The gun issue will produce mixed sentiments, and the President may be out of office before these cases go up. Quite simply, there is much to deplore in the Obama game plan. But it is not likely that the Supreme court will strike down much of it. I have some hopes for gutting portions of the health care act, but not so much on commerce clause grounds. The Rehnquist court just took baby steps there. the stronger issue is encroachment of state prerogatives for the public side of his health care agenda, and utility rate regulation arguments on the private side, since the plans are not likely to be able to survive on the cash that comes out of the public fisc.
Re: Calling Mssrs Epstein and Yoo, Esquires
The lessons of 1937, though, have had the unfortunate effect of convincing the Court that it should stay out of economic legislation. Under existing precedent on the Commerce Clause and judicial deference to economic regulation, it would be easy for the Court to stay out of reviewing any of Obama's program -- if the Court is of that mind. Probably the most significant, but less prominent, area of conflict will be -- as Richard says -- review of the regulations that will implement these reforms. And those will take some time to work their way through the courts. But there are deep constitutional problems with health care and perhaps financial regulation on Commerce Clause and individual liberties grounds, if the Court is willing to graduate from baby steps to adult walking. It may be in the bones of the current majority; the one noticeable thing about this term is that the Court -- on the Second Amendment and campaign finance cases -- is willing to launch some broad, new changes in constitutional law based on its reading of core principles in the Bill of Rights.