Fantasy Wrestling: Barack the Fundamental Transformer v. The Dread Justice Roberts
It could happen--Barack Obama and
John Roberts in an epic clash. For institutional, ideological, and
personal reasons, the two charismatic heavyweights may be on a collision
course.
Obama is a fierce competitor who climbed
the ranks from local Chicago pol to president in just 6 years. He
envisions a different American society--more liberal and redistributive,
with a government powerful enough to make it happen. His ambitious
Second Inaugural prompted even the New York Times to fit into print
“Obama offers liberal vision.”
From preserving every inch of turf held
by our overdrawn entitlement society, to game-changing action on guns,
global warming, gay advancement, and steeper redistribution, the Man
from Hyde Park has big plans.
The obstacle the First Organizer faces is
that different-minded Republicans occupy a quaint, populist outpost
called “The House of Representatives.”
The big changes needed to realize Hope
and Change won’t pass the House. After Harry Reid’s recent failure to
fillet the filibuster, they have poor prospects in the Senate, as well.
But the president declared our challenges require that we act today and
he intends to.
Of course, the dusty old Constitution
says Congress gets to pass the laws while the Executive bats clean up
and enforces them. But Justice Ruth Bader Ginsburg says our Constitution
isn’t a great model. It’s really old and doesn’t fully embrace human
rights—at least not like the South African or Canadian constitutions or
the European Declaration of Human Rights do. Obama appears to agree.
If the president posted on Facebook his
relationship status with the Constitution, he’d have to choose: “It’s
complicated.” The warmest thing he’s said about the Founders’ original
formula is that it wisely allowed for change as Americans grew more
enlightened.
He’s famously on record talking up the
Warren Court as pretty moderate after all, because, for all its
constitutional adventurism, it didn’t break free of the basic structure
and limits on federal power the founders built into the Constitution, at
least as currently interpreted.
It’s hard to miss the First Organizer’s
yearning for broader interpretations. He aims to blaze a new
constitutional path, with a much larger role for Washington in steering
national life, and fewer constraints on the president’s hand on the
wheel.
A divided, stalemated Congress won’t put
up much resistance to executive expansion. A primary check will come, if
at all, from the judiciary, where John Roberts presides. A Bush
Appointee and veteran of the Reagan and Bush White Houses, Roberts holds
more traditional views on Constitutional matters.
An anecdote reported around the time of
Roberts’ confirmation hearing to the high court illustrates his
orientation. As a young staffer in Reagan’s DOJ, Roberts was assigned to
analyze a demand from a liberal House member who criticized the
president for being “out of touch.” The Representative demanded
negotiations with the administration in order to form a “power sharing”
arrangement between Congress and the executive. Roberts wrote in a legal
memo that it so happens the Framers had addressed that very subject.
The congressperson might be interested to check out the drafters’
“committee report” found in Articles I and II of Constitution about the
sharing of powers between the executive and legislative branches.
Conservatives disillusioned by Roberts’
opinion on Obamacare are braced for the worst in future showdowns. But
they might have things wrong.
No one knows exactly how to read Supreme
tea leaves, but one school of thought is Roberts feels the burden of
preserving the court’s reputation and stature. He stared at liberalisms’
holy grail of social programs, “universal” health care, and the
fiercely arrayed forces of national media--from satellite to bloggers in
basements--and rather than enter into permanent Armageddon with the
information army, he blinked.
But finessing a specific program passed
by two branches in a field already half occupied by government dollars
is not the same as stepping aside for willful executive overreach. If
Roberts is minding the court’s legacy, he doesn’t want to be
remembered the Chief who played FDR’s Charles Evan Hughes to Barack
Obama, and approved a redesign of the federal role in American life.
Obama clearly will test any restraints on
his vision. His DOJ under Eric Holder is not timid about pushing
aggressive cases. Already Obama has lost a unanimous First Amendment
decision, where the administration tried to police a church’s decision about hiring clergy as well as another unanimous slap down of the EPA arbitrarily abusing homeowners.
Following the Gulf oil well disaster, the
administration effectively defied judicial oversight of an unsupported
and arbitrary ban on all drilling, returning repeatedly with slight
modifications of the ban and forcing the courts to play whack-a-mole
with a lawless Department of Energy.
The DC Court of Appeals recently rejected
Obama’s unprecedented attempt to declare the senate in recess and force
through unconfirmed appointments to the NLRB and other federal offices.
That case is headed for the high court.
As the branches seemed poised for
increased tension, there’s some personal history between the two men.
Obama was one of the few senators to vote against Roberts.
At a State of the Union address, Obama
famously derided and criticized his robed hostages for their decision in
the Citizens United case. A few weeks later, Roberts said in a public
speech that political attacks on the court raise the question if
justices really belong at the SOTU.
Then there was healthcare, and Obama’s
aggressive statements to influence the court. He won that round.
Roberts found a way to see it the president’s way.
Was it judicial subordination and an omen? Or was Roberts playing a strategic game to build capital for even bigger fights.
A lot depends on the answer.
