Will the Supreme Court strike back at Obama’s overreach?

George Will writes in The Washington Post:

During Watergate, Henry Kissinger’s mordant wit leavened the unpleasantness: “The illegal we do immediately; the unconstitutional takes a little longer.” President Obama often does both simultaneously, using executive authoritarianism to evade the Constitution’s separation of powers and rewrite existing laws.

Last week, however, the Supreme Court took a perhaps-momentous step toward correcting some of the constitutional vandalism that will be Obama’s most significant legacy. The court agreed to rule on Obama’s unilateral revision of immigration law.

Seeking reelection in 2012, Obama stretched the idea of “prosecutorial discretion” — supposedly “on an individual basis” — to cover a delay in efforts to deport more than 1 million persons who were brought to the United States illegally as children. But he said that with this he had reached the limit of his powers: “If we start broadening [this executive action], then essentially I would be ignoring the law in a way that I think would be very difficult to defend legally.”

In 2014, however, he expanded the sweep and protections of that program. His executive fiat would have shielded perhaps 4.5 million illegal immigrant adults with children who are U.S. citizens or lawful residents. His expansion made them eligible to work and receive Social Security retirement and disability benefits, Medicare, the earned-income tax credit, unemployment insurance, driver’s licenses, etc.

Led by Texas, a majority of states (26) asserted standing to sue because of the costs of complying with the new policy. When they won an injunction, the Obama administration appealed to the U.S. Court of Appeals for the 5th Circuit. The administration lost there, too, and then asked the Supreme Court to rule on the legality of Obama’s action. The court should not, and probably will not, rule for the president.

 

The court has asked to be briefed on a matter the administration must be reluctant to address; the Justice Department requested that the court not insert a “constitutional question” into the case. The question the court will consider is: Did Obama’s action violate the “ take care clause ”?

Obama has sworn to “preserve, protect and defend the Constitution,” which says the president shall “take care that the laws be faithfully executed.” Josh Blackman of the South Texas College of Law in Houston and adjunct scholar at the Cato Institute in Washington says that only three times has the court relied on the take care clause to limit executive actions, and the justices have never asked for a briefing on this clause.

In their brief, the states argue that “Congress has created a detailed, complex statutory scheme for determining” who qualifies for “lawful presence” in this country. No statute empowers the executive to grant this status to any illegal immigrant it chooses not to deport, let alone to confer “lawful presence” status on a class of many millions.

The states say presidents cannot “change an alien’s statutory immigration classification.” So, Obama is not merely exercising discretion in enforcing the Immigration and Nationality Act. He is altering this act so that previously prohibited conduct no longer violates the act.

Executive overreach has been increasing for decades. For example, although the Troubled Asset Relief Program was for financial institutions, the George W. Bush administration diverted more than $17 billion for auto companies. Obama’s usual justification for his unusually numerous acts of unilateral legislating is that Congress refuses to act on this or that subject. But regarding who qualifies for legal status and for the right to work, Congress has acted with notable specificity. Obama simply wants to grant to millions of people various benefits in violation of Congress’s will as written into law.

For seven years, Obama has treated the take care clause as a mild suggestion. He considers it insignificant compared with his virtuous determination to “work around” Congress to impose his policies regarding immigration, health care, education, contraception, welfare, gun control, environmentalism, gay rights, unauthorized wars and other matters.

Both leading Democratic presidential candidates praise Obama’s radical understanding of the Constitution’s Article II presidential powers. The leading Republican candidate would replace the Constitution’s 7,591 words with the first-person singular pronoun: He promises many unilateral presidential wonders, including a global trade war and a holier national vocabulary: “If I’m president, you’re going to see ‘Merry Christmas’ in department stores.”

But no Obama executive action has yet repealed Article III’s judicial powers. So, come June we will learn whether the judicial branch will do its duty by policing the borders of the separation of powers.

Obama Is a Man of Political Paradox

Gerald Seib writes in The Wall Street Journal:


When President Barack Obama makes his final State of the Union address Tuesday, one of the guests seated in the box of first lady Michelle Obama will be Edith Childs. Mrs. Childs enjoyed a brief period of fame when, at an early Obama campaign stop in South Carolina in 2007, she energized the small crowd by starting the chant, “Fired up! Ready to go!”


That became something of a rallying cry for Mr. Obama’s presidential campaign and aptly captured the excitement that accompanied his historic victory run.


Over time, the excitement gave way to the more sober realities of governing amid deep partisan divisions. His election will always be a historic one, but what is most striking as Mr. Obama makes his final visit to the well of the House of Representatives are the many paradoxes that have come to mark his presidency.


He has never become either wildly popular or broadly unpopular with the country. His job-approval rating in the latest Wall Street Journal/NBC News poll in December stood at a mediocre 43%. Over the seven years he has been in office, it has never gone above 61%—a level reached only in his early months in office—and never below 40%. It has generally hovered just below 50%.


He has never reached either the periods of high popularity enjoyed by Ronald Reagan and Bill Clinton or the levels of unpopularity endured by his predecessor, George W. Bush, whose job-approval rating stood at 34% at this point in his presidency.


The power of his Democratic Party has declined significantly during his time in office. It has lost 13 seats in the U.S. Senate and 69 in the House, as well as 11 governorships, 910 state legislative seats and the majorities in 30 state legislative chambers.


Yet he remains the Democrats’ strongest figure. He generates higher positive feelings among Americans than either of his would-be Democratic successors, Hillary Clinton and Sen. Bernie Sanders, and higher than any of his potential Republican successors. His support among African-Americans remains rock solid. His support among young people and Hispanics is diminished, but still strong. The electoral coalition that can win the White House for Democrats remains identified with him.


Some of the key positions he espouses—action on guns and climate change, keeping troops out of the Middle East, preserving the main elements of his health-care overhaul—are more popular among Americans than is his advocacy for them. Indeed, public polling suggests that attaching his name to a policy position means that some Americans, who otherwise might voice support for it, will oppose it.
How can these paradoxes be explained?


It may be that Mr. Obama was simply destined to serve in a time of unprecedented ideological division in the nation and a near-even split of partisan power in Washington, a situation that limits everybody’s latitude. Perhaps the divides have been too deep for anybody to overcome. Or perhaps he has so far failed to find the voice or the political operating style that would allow him to continue that sense of unity that greeted his election and inauguration.


Perhaps his big twin early achievements—a big economic stimulus package and the Affordable Care Act—were always bound to be polarizing. Or perhaps his inability in those early days to win any bipartisan support for them set a polarizing precedent that has stuck.


Perhaps recovery from the twin traumas he inherited—a costly war in Iraq and a financial crisis that produced broad aftereffects—left the country both angry and cynical.


Mr. Obama serves at a time when virtually every institution, save for the military, is falling in Americans’ esteem.


There’s one other little-discussed but inescapable question: Has Mr. Obama always confronted a ceiling in how widely he would be loved or even accepted because he is the nation’s first African-American president?


In any case, this is where he stands at the beginning of his eighth year. Both Messrs. Reagan and Clinton used a final year to overcome earlier traumas, achieve some goals and rise in public esteem. Mr. Obama now has the same opportunity.


The political math suggests little chance of big domestic legislative achievements in an election year, with Congress controlled by the opposition party. But the Republicans now running Congress—House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell—have shown they are willing and able to get at least some things done with Democrats.


Most of the big goals that could be achieved—ratifying a Pacific trade deal, for example, and formally authorizing the fight against Islamic State—lie in the foreign-policy zone. Maybe that is where Mr. Obama can get fired up and ready to go for his stretch run.