Two years ago, President Barack Obama stood in jubilation, hugging the White House counsel Kathryn Ruemmler after finding out the Supreme Court had upheld his signature domestic achievement.
Two years later, amid the most significant challenge to the Affordable Care Act since that moment, Obama didn’t have much to cheer about. The Supreme Court’s 5-4 decision, split along the normal conservative-liberal judicial lines, found the law’s contraception mandate violated certain companies’ rights under the Religious Freedom Restoration Act.
“We disagree, and the constitutional lawyer in the Oval Office disagrees, with that conclusion from the Supreme Court,” White House press secretary Josh Earnest told reporters Monday.
There’s been little solace for Obama this Supreme Court term. In addition to Burwell v. Hobby Lobby, the Obama administration and the causes it has supported have experienced a handful of high-profile setbacks before the high court.
Also on Tuesday, the Supreme Court dealt a blow to public-sector unions, ruling that some employees couldn’t be forced to pay dues. Last week, in a unanimous, 9-0 rebuke, the justices ruled Obama had overstepped his constitutional authority when he went around Congress and unilaterally appointed three members to the National Labour Relations Board.
Also last week, the high court unanimously struck down a law that had established 35-foot “buffer zones” at abortion clinics in Massachusetts. And earlier this term, the court dealt the most serious blow to campaign-finance laws since the landmark Citizens United decision in 2010.
Earnest was asked if Obama was concerned or frustrated about the way the term went for the administration.
“I’d hesitate to make a broad assessment like that from this podium,” Earnest said.
But other legal experts and the president’s political opponents have taken notice. Since January 2012, the Obama administration has suffered at least 13 unanimous defeats in cases it argued (not counting cases in which it filed an amicus brief), according to the libertarian-leaning Cato Institute.
Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, told Business Insider that while 5-4 decisions can be blamed on the conservative-liberal split of the court, unanimous decisions are “indicative of an administration that pushes and breaks through the envelope in its assertion of federal power.”
Added a GOP Senate aide in an email to Business Insider: “Recent court decisions say as much about Democrat overreach as they do about anything else, and no data point underscores that more clearly than the dozen unanimous defeats they have handed to Obama.”
Solicitor General Donald Verrilli, the administration’s chief constitutional attorney, argued and lost four high-profile cases — the NLRB, Hobby Lobby, campaign-finance, and abortion “buffer zone” decisions.
Two of the rulings handed down over the past week — the NLRB decision and the Hobby Lobby decision — get to the core of the argument Republicans will push this election season. Since Obama announced his intention to make 2014 a “year of action” full of executive actions, Republicans have decried it as an abuse of power. House Speaker John Boehner intends to sue Obama over his prevalent use of executive actions.
That perceived overstep fits in with the Hobby Lobby decision, which Republicans argued was about “religious liberty.”
“The decision affirms that Americans, contrary to what the Obama administration attempted to impose, have a right to live and work in accordance to their conscience and can’t be forced to surrender their religious freedom once they open a business,” Sen. Ted Cruz said in a statement.
“This ruling is a repudiation of the Obama administration’s untenable position that people with sincerely held religious beliefs should be forced to comply with an unconstitutional mandate while a parade of waivers, exemptions, and delays are granted for purely commercial and political interests.”
The New Yorker’s Jeffrey Toobin predicted the two decisions, described as “narrow” by many legal experts, will be anything but — since they open the door to future legal challenges. Toobin considers it part of a classic “two-step” feature of the Chief Justice John Roberts court — hand down a “narrow” ruling now, and make sweeping decisions later.
Both of the decisions — from the public-sector unions case (Harris v. Quinn) and the Hobby Lobby case — are examples of rulings that could lead to further, more sweeping rewrites of laws. One needs only to glance at the scathing dissent of liberal Justice Ruth Bader Ginsburg from the Hobby Lobby decision to see the angst of many liberals and Democrats after this term.
Ginsburg said the court established a new precedent in the Hobby Lobby case — one that “invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.”
“The court, I fear, has ventured into a minefield,” she wrote.
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