Courts' War on FDR Continues With Obama
More than any president since Franklin Delano Roosevelt, Barack Obama has seen his signature programs blocked or impeded by the courts. In the latest episode, a federal appeals court in New Orleans heard arguments Friday about what to do about his executive action on immigration, which has been blocked by a single district judge in Texas. Similar judicial roadblocks have profoundly affected Obama's efforts in health care, environmental protection and Internet regulation. So it's worth asking: What's going on? Why has the judiciary taken such a big role in opposing the president’s efforts to make policy?
To find another president whose efforts have been so affected by the courts, you have to go back more than 80 years, to the first New Deal. Roosevelt beat Herbert Hoover by a decisive majority, and with a Democratic Congress at his back, he passed radical reforms intended to halt the slide of the Great Depression. The Supreme Court struck down the National Industrial Recovery Act and the Agricultural Adjustment Act, the two signature pieces of legislation in the first New Deal.
Some of the votes on the court came from strong Roosevelt opponents, the so-called four horsemen who had championed a libertarian, property-protecting jurisprudence for the previous several decades. They were fighting a rearguard action on behalf of Republicans who had lost control of the other two branches of government.
But votes to strike down the two acts also came from moderates like Benjamin Cardozo, who called one of the crucial programs “delegation running riot.” In this sense, the court blocked the first New Deal because of its political radicalism: The NIRA and AAA gave tremendous power over the economy to corporatist-style bodies of labor, management and consumers, and these were simply too foreign to American political practice for the constitutional system to assimilate them.
In response, Roosevelt went on the attack by threatening to pack the Supreme Court. But he also reformulated his programs to be more institutionally moderate. The court responded by upholding the second New Deal’s signature programs.
After that, the judiciary's resistance to strong federal action became much more episodic and rare. Harry Truman was frustrated when the Supreme Court by a 6-3 vote blocked his seizure of the U.S. steel industry in order to solve a labor dispute toward the end of the Korean War. But the seizure was an emergency solution to a pressing problem, not a signature policy program.
Dwight Eisenhower faced no major opposition in the courts. Indeed, he showed a close alliance with the judiciary when he sent the 101st Airborne to Little Rock, Arkansas, to enforce the federal courts’ desegregation orders there. John Kennedy was never confronted by the judiciary, though he wasn't in office very long.
Lyndon Johnson passed major legislation under the rubric of the Great Society -- and the judiciary consistently upheld laws such as the Civil Rights Act against constitutional challenge. When the courts subsequently ruled on welfare and disability issues, they tended to strengthen the legal rights created with new procedural protections.
Richard Nixon was, of course, brought down partly by the Supreme Court's ruling that he must hand over the Watergate tapes. And the court allowed publication of the Pentagon Papers over his administration's objections. But these decisions didn't reverse his main policies or social legislation. The courts didn't, for example, strike down the Clean Air Act or Clean Water Act, or interfere with the creation of the Environmental Protection Agency.
When Ronald Reagan became president, many judges were still holdovers from Democratic appointments -- yet his major domestic policy accomplishments, including deregulation, proceeded without significant judicial obstructionism. Bill Clinton introduced many policies through executive orders -- and wasn’t blocked by the courts.
More recently, George W. Bush lost a series of high-profile cases over the prison at Guantánamo Bay, Cuba, as the Supreme Court repeatedly granted hearing and trial rights to detainees. But the court never shut down Guantánamo or blocked detention itself, and it didn’t touch the No Child Left Behind education act.
Why has Obama's experience been so different? The judiciary has lots of Bush appointees, but no more so than when Clinton faced a judiciary filled during the 12 years of the Reagan and George H.W. Bush presidencies.
The difference, I think, is that the conservative wing of the judiciary has been experimenting with activism -- and has found that the court’s legitimacy is unaffected and that there is no pushback as there was under Roosevelt.
In retrospect, Bush v. Gore was the opening act. The court gave the election to George W. Bush, and public respect for the institution didn’t decline.
The Affordable Care Act was Act 2. Scholars and court watchers were sure that the arguments against the individual insurance mandate were preposterous -- until lower courts began to adopt them and, ultimately, four justices voted to hold the mandate unconstitutional. Liberals criticized the court, but that didn’t meaningfully affect the institution's legitimacy. It helped that liberals, too, want the court to be activist, for example by creating a constitutional right to gay marriage. That makes it harder for liberals to criticize activism per se, as opposed to conservative activism.
By the time environmental protection and Internet regulation came along, the paradigm had been set. The U.S. Court of Appeals for the D.C. Circuit has been watching the Supreme Court closely. It rejected Obama's proposed net neutrality regulation promulgated by the FCC in January 2014. Now the administration's signature clean coal regulation will be challenged in the same court.
The federal district judge in Texas who has single-handedly blocked Obama's executive orders on immigration was following a script.
Conservatives may argue that Obama’s policy initiatives are more radical than those of presidents who came before. Don't believe it. The arguments used to block Obama's policies have generally started out seeming totally implausible -- only to be adopted by activist conservative judges. Unless the public responds by thinking less of the court, expect judicial activism from the right to continue, joining judicial activism from the left as a mainstay of American political life.
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