Much has been made of the Supreme Court slapping down the Obama administration unanimously Thursday – twice. It ruled that the administration acted unconstitutionally by making recess appointments when Congress had not said it was in recess. And it unanimously ruled that a Massachusetts law regulating anti-abortion protesters was unconstitutional. The administration had urged that it be upheld.
Yet these cases are actually just the latest in a series of unanimous rebukes by the court of the administration’s legal positions. In Hosanna-Tabor v. EEOC of 2012, for example, the court unanimously held, again contrary to the administration’s position, that religious freedom includes a church’s right to make personnel decisions.
These cases should affect the way we think about congressional Republicans’ determination to sue the administration over its casual approach to the rule of law, as House Speaker John Boehner, R-Ohio, has threatened. Republicans have grown angry over many moves by the administration that seem to ignore clear statutory text or otherwise advance novel theories of executive power.
Obama at one point denied that he had the power to implement the Dream Act, an amnesty for illegal immigrants who came to this country as minors. In 2012, when it seemed like imposing this policy would be helpful to his re-election, he did it anyway.
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Some of the complaints reflect the normal back and forth of party politics. Democrats charged that the George W. Bush administration seized too much power as well. Almost all of those complaints, however, centered on long-standing differences of opinion over the scope of a president’s Article II powers as commander in chief. The Obama administration has advanced broad readings of its power over a wider range of issues, without much in the way of Article II arguments.
The fact that even liberal Supreme Court justices appointed by Democratic presidents – two appointed by Obama himself – have repeatedly ruled that the administration’s positions ran afoul of the Constitution suggests that more than just party politics is at work. It may or may not be wise for congressional Republicans to go to court against the administration, which raises thorny legal questions about their standing to sue. But the Republicans are right to think this administration has made a dangerous habit of pushing the limits of its constitutional authority.