The headline writers at The Washington Post are worried that “President Obama’s legacy is increasingly in legal jeopardy,” but we’re worried that they’re wrong. Our faith in the judicial system has never recovered from that awful Obamacare decision, and we can’t imagine anything it might do to further tarnish the president’s sorry legacy.
Still, there’s some fun in watching the president and his media allies fret that the courts will impose some restraints on his ever-expanding powers. There’s no guarantee that they will, given that four of the Supreme Court justices seem predisposed to agree with Richard Nixon’s infamous argument that “If the president does it, that means it’s not illegal,” at least in the case of this particular president, and there’s always at least one Republican appointee who is prone to go wobbly, but on several fronts the legal logic against the president is so compelling that it will at least be amusing to read the rebuttals.
The latest legal imbroglio concerns Obama’s executive orders on illegal immigration, which even he repeatedly insisted he has no constitutional authority to write until his re-election was won and he suddenly decided he did after all. Now the former adjunct professor of constitutional law’s lawyers are arguing that prosecutorial discretion allows him to stop enforcing immigration law, but two judges on the Fifth Circuit Court of Appeals out-voted a dim-witted third member of a panel to deny an earlier stay of injunction against the executive orders, and offered a convincing decision that “prosecutorial discretion is broad but not unfettered,” and that the orders are “more than non-enforcement: It is the affirmative act of conferring ‘lawful presence’ on unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.” Such reasoning won’t sway those four Justices inclined to side with Obama when it inevitably winds up in the Supreme Court, probably around election time, but we hope it might have some stiffening effect on one of those potentially wobbly Republican appointees.
There’s also a chance, at least according to those worried media allies of the president, that the Supreme Court will strike a blow against Obama’s big domestic triumph in the already embarrassing King v. Burwell case. That’s the one challenging the subsidies for Obamacare being offered through federally-run health insurance exchanges, on the grounds that the law clearly states that the subsidies are only available to to those enrolled through state-run systems, and because 36 of the states reasonably chose to have nothing to do with the Obamacare monstrosity the decision will have significant consequences. The former adjunct professor constitutional law’s lawyers are arguing that to insist a law be enacted as written is picky-picky-picky, and that no one should expect a 2,000-plus page bill to be free of significantly consequential errors, and never mind those statements by the bill’s “architect” that the language was clearly intended to coerce states to go along, and that, c’m’on, it’s Obama. This will probably prove persuasive to at least one of those wobbly Republican appointees, although we can hope that Chief Justice John Roberts might seize the opportunity to repent for his vote in that awful decision on the general constitutionality of Obamacare, and in any case there will be some black comedy in the arguments and a cautionary tale about passing 2,000-plus page bills that fundamentally transform a sixth of the economy and don’t promise to be free of errors with significant consequences.
The Washington Post is also worried that the Supreme Court might interfere with Obama’s noble attempts to halt the rise of the oceans and heal the earth through Environmental Protection Agency regulations on coal-fired power plants’ mercury emissions, and that they might conclude the authors of the constitution and the Republic that ratified it didn’t intend a right to same-sex marriage, but these seem rather inconsequential to the president’s all-important legacy. The combined powers of the EPA and Obama’s messianic charisma can’t stop China from frying the climate, even if you believe all that global warming alarmism, and Obama was so late to the same-sex wedding fad that he won’t be able to take any credit even if the Supreme Court does decide that it was exactly what James Madison and the rest of those dead white males had in mind all along.
Those Washington Post headline writers should take some comfort in the Supreme Court’s recently acquiescent history, but they shouldn’t hold out any hope for Obama’s legacy. The best-case scenario for Obama is that he’ll forever be remembered for inviting a wave of unskilled third-world immigrants that further overwhelmed an exhausted social welfare system, as the eponym of a law that raised health care costs and reduced health care quality, as a narcissist who thought he could turn back the tide, a latecomer to the same-sex marriage fad, and the man who won the argument that it’s not illegal if a president does it.
— Bud Norman