No, Obama Isn’t Facing Activist Conservative Judges


No, Obama Isn’t Facing Activist Conservative Judges

Apr 30th, 2015 4 min read
Elizabeth Slattery

Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies

Elizabeth Slattery researches and writes on the rule of law, separation of powers, civil rights, and other constitutional issues.

In “Courts’ War on FDR Continues With Obama,” Noah Feldman argues that the courts have played an outsized role in opposing President Obama’s policy agenda. Feldman claims that Obama, unlike past presidents, is dealing with a “conservative wing of the judiciary [that] has been experimenting with activism.”

From Obamacare to net neutrality to immigration action, Obama supposedly can’t catch a break with “activist conservative judges” thwarting his every move.

Feldman also disputes that Obama’s policies are “more radical” than past presidents. “Don’t believe it,” he says, because “[t]he arguments used to block Obama’s policies have generally started out seeming totally implausible—only to be adopted by activist conservative judges.”

Of course, the claims that such challenges were “totally implausible” came almost entirely from liberal, progressive law professors. Let’s consider some of these “radical policies” and “totally implausible arguments.”

Obamacare’s individual mandate: In NFIB v. Sebelius (2012), the Supreme Court upheld Obamacare’s mandate requiring Americans to purchase health insurance as a permissible exercise of Congress’s taxing power. But Congress passed (and the Obama administration defended in court) the mandate pursuant to its power to regulate commerce among the states.

Though plenty of academics claimed there could be “no doubt” this was constitutional, the Supreme Court disagreed because Congress can’t regulate a person doing nothing and claim it is economic activity that can be regulated as interstate commerce. Sitting on your couch at home is the opposite of engaging in economic activity.

As Chief Justice John Roberts explained, “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” It was the Obama administration, not conservative judges, that tried to stretch the Commerce Clause far beyond the point of recognition.

Net neutrality regulations: In Verizon v. Federal Communications Commission (2014), a three-judge panel of the D.C. Circuit Court of Appeals vacated the agency’s rules that essentially required Internet service providers to comply with common carrier regulations—forcing them to treat all Internet traffic the same—even though the Federal Communications Commission was prohibited from doing so under the Communications Act.

As my colleague James Gattuso explained, the Federal Communications Commission “has pursued the goal of forced neutrality relentlessly for over a decade” despite having no legal authority to do so.

Undeterred by these “activist conservative judges” (two of whom were appointed by President Clinton), the Commission took another crack at net neutrality in early 2015 by reclassifying Internet service providers as public utilities, subjecting them to comprehensive regulation.

Immigration action: Last fall, Obama set into motion major revisions to our immigration laws by executive fiat. Instead of working with Congress to change the law, Obama (in his own words) “just took an action to change the law.”

Under the guise of “prosecutorial discretion,” the administration will decline to enforce the law against an estimated 5 million illegal immigrants. Under this view of prosecutorial discretion, the exception subsumes the rule and there can be no “discernible limits.”

Even Saturday Night Live recognized this was beyond the president’s authority. Texas and 25 other states challenged the action in court, and a district court judge temporarily halted the Obama administration from implementing its new program.

This preserves the status quo while the court considers the merits of the states’ case against Obama’s amnesty plan—which not only defers deportation, but allows illegal immigrants to apply for work authorizations, Social Security cards and a number of government benefits.

Further, Feldman fails to mention that the “activist conservative judges” who have ruled against the administration include Obama’s own nominees to the bench, Justices Sonia Sotomayor and Elena Kagan. Sen. Ted Cruz, R-Texas, put out a report detailing 20 cases in which all nine justices ruled against the Obama administration. The report explains:

If the Department of Justice had won these cases, the federal government would be able to electronically track all of our movements, fine us without a fair hearing, dictate who churches choose as ministers, displace state laws based on the president’s whims … and destroy a person’s private property without just compensation.

It sounds like Obama, not the courts, started this fight.

This piece originally appeared in The Daily Signal