Marc Thiessen's recent attack on Chief Justice John Roberts for his opinion upholding the health care reform law attempts to move the right's ideological goal posts for the Court from the strongly conservative part of the field into what Reagan Administration Solicitor General Charles Fried has called "radically reactionary" territory. Thiessen, a former George W. Bush speechwriter, expressed his discontent in a July 2 Washington Post op-ed that criticized Roberts - a Bush appointee - for agreeing with the court's liberal members in an opinion upholding the Affordable Care Act. He framed his attack as a lament over the supposed difficulties Republican presidents have had in confirming dependably conservative justices.
But in doing so, Thiessen downplayed Roberts' extensive record of voting similarly to his fellow conservatives, especially Samuel Alito, whom Thiessen identified as a reliable conservative. Thieseen also ignored the well documented shift in the court's ideological center in recent years: the four "liberal" justices are much closer to the center than William Brennan, Thurgood Marshall and other justices on the court's left only a few decades previously. In this way, Thiessen paints a picture of liberal triumph and conservative frustration which bears scant relationship to reality, which is the most conservative Supreme Court in modern times.
Thiessen grouped Roberts with justices who disappointed conservatives (Sandra Day O'Connor and David Souter, both of whom are no longer on the court) as opposed to acknowledged right-wing successes Antonin Scalia, Clarence Thomas, and Samuel Alito. He attempted to make this case by focusing solely on the health care decision, and downplaying the rest of Roberts' record as a justice.
That record is clear. Roberts is, to use Thiessen's expression, a "rock-ribbed conservative." In the just-completed 2011 Supreme Court term, he voted with the Thiessen-approved Justice Alito in 90.5 percent of cases, after voting with him 96.2 percent of the time in the 2010 term. Roberts also voted with Justice Thomas in 87.8 percent of cases and Justice Scalia in 86.5 percent of cases in the most recent term. In other words, in the overwhelming majority of cases, Roberts votes with the justices whom Thiessen acknowledges to be acceptably conservative.
Right-wing media figures are heaping harsh criticism on Chief Justice John Roberts for his opinion upholding the Affordable Care Act as constitutional. These critics ignore Roberts' record as Chief Justice, which is very conservative. But even this conservative justice recognized that the Constitution gives Congress the power to address the nation's health care crisis with the Affordable Care Act.
Breitbart.com editor-at-large Ben Shapiro blasted the Chief Justice:
I knew that Roberts was a bad pick because he didn't have a proven track record of adherence to the Constitution. He was picked by President Bush because Bush knew he didn't have a track record - and he knew that Roberts would sail through the confirmation process without a hitch.
That should have been an indicator that Roberts was a rotten pick. Nobody doubted Robert Bork's originalist credentials. Nobody doubted Clarence Thomas'. Nobody doubts Judge Janice Rogers Brown's. But nobody had any reason to buy into Roberts as an originalist. Yet they did.
Dan Gainor, Media Research Center's vice president for Business and Culture called the decision to nominate Roberts "awful."
Fox News Radio's Todd Starnes applied the "L word" to Roberts.
This attempt to paint Chief Justice Roberts as a closet liberal is absurd. Experts have called the Supreme Court under Roberts the "most conservative in modern history." As the leader of a five justice conservative majority, Roberts has played a leading role in decisions like Citizens United (empowering corporations and wealthy individuals to spend unlimited money in political campaigns); Wal-Mart (preventing women alleging sex discrimination from joining together to seek justice); Concepcion (allowing corporations to manipulate fine print in contracts to keep ripped off consumers from joining together in court); and Ledbetter (preventing a woman who was paid less than men from going to court).
Also, the U.S. Chamber of Commerce enjoyed a perfect year with the Roberts Court this term, winning every case in which the Court ruled on the position the Chamber took, according to a study by the Constitutional Accountability Center. (The Chamber took no position on the constitutionality of the Affordable Care Act, but merely argued that if the mandate were struck down, the entire Act should be invalidated). According to the study, the Chamber has not won every case in a term since at least 1994.
Rather than calling John Roberts names or trying to make the absurd case that he is a closet liberal, the right should simply acknowledge that their crusade to kill the Affordable Care Act failed because they lost the vote of the deeply conservative, Republican-appointed Chief Justice who heads one of the most conservative and pro-corporate courts in history.
Consider the following scenario: Congress passes an important economic regulation designed to address a major national problem over massive opposition from conservative and corporate interests. Defeated in the democratic process, these forces then launch a legal attack, using a novel theory to claim the law is unconstitutional. Right-wing media cheer the suit, claiming it is a fight for freedom.
Sound familiar? It should, given the unresolved fate of the Affordable Care Act, but this time the reform in the right's crosshairs is not health care. It's consumer financial protection. A new lawsuit and right-wing media campaign have taken aim at the Consumer Financial Protection Bureau (CFPB), created by the Dodd-Frank law in response to the 2008 financial market collapse. The purpose of CFPB is to "promote fairness and transparency for mortgages, credit cards, and other consumer financial products and services." Although the legal arguments made in the suit are questionable, the case should not be dismissed as harmless. The right-wing media's proven ability to move dubious legal claims into mainstream debate combined with a conservative federal judiciary sympathetic to corporate interests mean the CFPB suit bears close scrutiny.
The lawsuit alleges that CFPB and another entity, the Financial Stability Oversight Council (FSOC), which oversees the law's "too big to fail provisions," are unconstitutional because key provisions of Dodd-Frank are too vague and do not provide sufficient oversight of the agencies' actions. They also challenge President Obama's recess appointment of CFPB Director Richard Cordray following a Republican filibuster of his nomination.
Legal experts are already expressing skepticism on the suit's merits. Deepak Gupta, an appellate lawyer and former CFPB official, called the suit "more a political stunt than a serious legal challenge" and questioned whether the plaintiffs challenging the law have standing to do so. ("Standing" is a legal requirement that a party to a case be at least at risk of suffering a real harm from the action complained of.) A small community bank in Texas is a plaintiff in the case (along two conservative organizations), and an article in the American Banker questioned whether the bank is large enough to be subject to the provisions of which it complains.
The Roberts Court's five Republican-appointed justices invented a new rule that threatens to greatly weaken public employee unions in yesterday's Knox v. SEIU decision. Reaching out to decide an issue that the parties to the case never argued, these justices instead engaged in "radical policy-making" using an argument drawn from a friend of the court brief submitted by the Cato Institute and a coalition of other right-wing organizations. As the cheerleading for the decision by right-wing institutions and blogs makes clear, the decision is much more likely to be the first battle in a new legal war on public employee rights than a mere reworking of technical legal rules.
In the case, the five conservative justices turned precedent on its head to severely limit the ability of public employee unions to spend fees from employees they represent to fight anti-worker political battles. The limits adopted by the conservative justices went beyond what even the parties in the case had requested.
The Knox decision is evidence that the Court's Republican-appointed conservative majority has decided to inject the Court into the national debate on workers' rights, according to both Justice Stephen Breyer, who dissented in the case, and Steven Hayward of the right-wing Powerline blog. Justice Breyer noted that states have taken varied approaches to nonmember rights in union workplaces, and that the political debate on this subject, especially with respect to public employees, is "intense." Now, he observed, the conservative justices have not only entered the debate, but apparently "decide[d] that the Constitution resolves it." Powerline's Hayward agrees, writing that the Knox decision's effect will be "similar to the Scott Walker reforms in Wisconsin that have devastated public employee union political capacity there. Step by step."
Constitutional scholar Garrett Epps calls Knox "the Court's Scott Walker Moment."
The U.S. Chamber of Commerce's Institute for Legal Reform (ILR) pursues a campaign against laws that hold corporations accountable, hammering home familiar buzzwords such as "frivolous lawsuits" and "jackpot justice." It also owns newspapers and an online news service that cover those very issues. Recently that service, Legal Newsline, reported on a Supreme Court case in which the Chamber of Commerce filed a brief without disclosing the site's relationship to the Chamber in the article. This failure to disclose its parent's interest in the matter highlights the ethical issues and potential conflicts arising from an advocacy organization like ILR owning a news organization.
The Legal Newsline article in question dealt with the Supreme Court's recent decision in Christopher v. SmithKline Beecham Corp, another in a series of 5-4 pro-corporate decisions by the Court's Republican-appointed majority. The Chamber of Commerce, as it often does, filed a brief in case, arguing for the position the majority adopted, that pharmaceutical sales representatives are not eligible for overtime pay. The Legal Newsline article recites the facts of the case and summarizes the majority opinion (but not the dissent). The article does not mention that the Chamber of Commerce -- which through the Institute for Legal Reform owns Legal Newsline -- was involved in the litigation and took a position in favor of the employer in the case.
Legal Newsline discloses its ownership by Institute for Legal Reform on its "About Us" page. The disclosure is not, however, obvious to the reader of an article on the site, who would only see it if he or she clicks the "About Us" link and reads to the sixth paragraph of the statement found there. Even this limited disclosure was apparently recently added by the site; a report on ILR issued in October 2011 stated that ILR's ownership of Legal Newsline was not disclosed on the site at all as of October 18, 2011.
WTVT ("Fox 13"), the Fox-owned affiliate in Tampa, has weighed in on Florida Republican Gov. Rick Scott's controversial decision to ask state police to investigate three state supreme court justices appointed by a Democratic predecessor. The station's report hypes the governor's side of the controversy as a major political problem for the justices by asking two unidentified people if they would support judicial candidates who are under investigation and reporting their negative responses.
Florida voters will decide in November whether to retain Justices Fred Lewis, Barbara Pariente and Peggy Quince for an additional six year term each. Critics of the justices, both Tea Party-backed local groups and national right-wing organizations such as the American Justice Partnership, have begun to call attention to the retention election. If the justices are defeated, Scott would appoint their successors.
Critics of the justices have seized on their use of court employees to notarize filing documents for the election. A state law prohibits candidates from using government staff for campaign work. Critics and supporters of the justices disagree as to whether the justices may have violated the law, and Scott has asked the Florida Department of Law Enforcement (FDLE) to decide whether an investigation is warranted. But the uncertainty regarding what that determination will be did not stop Fox 13's ham-fisted hyping of the controversy in a negative light for the justices.
In a Wall Street Journal op-ed, the Cato Institute's Ilya Shapiro uses three recent unanimous Supreme Court decisions to attack the Obama Administration for "increasingly extreme claims on behalf of unlimited federal power." There's just one problem with this analysis: in each case, the Obama administration was defending government actions that took place during the Bush administration. The Solicitor General, who is the government's top lawyer, has, in almost all cases, an obligation to defend government actions and federal laws, including those actions undertaken by previous administrations. That is what the Obama administration was doing in the three cases Shapiro highlights. But if Shapiro noted that fact, it would undermine his narrative about the administration's supposed "constitutional vision."
In the op-ed Shapiro highlights three cases. Hosanna-Tabor Church v. Equal Employment Opportunity Commission involved an employment discrimination lawsuit filed by the EEOC during the Bush administration. Sackett v. Environmental Protection Agency concerned when landowners have the right to challenge EPA actions in court. The action the Sacketts complained of was an order by the Bush Administration's EPA to stop building a house in violation of the Clean Water Act. The third case, United States v. Jones, involved a challenge to the use of a GPS tracking device to establish the movements of a criminal suspect. The Bush administration's Department of Justice launched the prosecution of Jones.
In Salon, Andrew Koppelman sets out the process by which the constitutional challenge to the Affordable Care Act's individual mandate made its way - via think tank issue briefs, op-eds, and blog posts - from being a completely off-the-wall notion to a nearly universal article of constitutional faith among conservative activists. This look back is even more important as a means of anticipating how the Right is likely to launch future attacks against Social Security, Medicare, and any number of health, safety and consumer protections. The assault on health care reform shows that the right's combination of established infrastructure, an activist and ideological segment of the judiciary, and partisan media is a powerful one. Progressives should remember how aggressively and effectively the right was able to deploy its view of the Constitution as a weapon, and meet future attempts to do so head on.
Koppelman's research shows that within a few months in mid-2009 the constitutional argument against health care reform went from nonexistent to a subject of mainstream discussion. Koppelman was unable to find any published claim that the individual mandate would be unconstitutional prior to a July 2009 Federalist Society issue brief written by two former Bush administration officials. In August 2009, conservative lawyers David Rivkin and Lee Casey, who regularly write on issues the right-wing legal infrastructure wishes to move into the mainstream, published a Washington Post op-ed attacking the mandate on constitutional grounds. On September 18, law professor Randy Barnett, who would play a leading role in the subsequent litigation against the act, first weighed in on the issue with a post on Politico. Koppelman notes that days later CBS News reported that "[i]n the last few days, a new argument has emerged in the debate over Democratic healthcare proposals," and that CBS mentioned that the constitutionality issue had emerged on The O'Reilly Factor and Fox News.
It is noteworthy that Fox News was out in front, driving the constitutional attack on the health care law into mainstream debate. Bill O'Reilly raised the constitutional issue on his show on September 9, over a week before Barnett, soon to become the public face of the cause, made his first public pronouncement. That night, in the "Talking Points Memo" portion of his show, O'Reilly said:
And finally it may be unconstitutional to force Americans to buy health care insurance, although Mr. Obama wants that and compares it to mandatory auto insurance. With auto insurance you have a machine that can do damage.
Could be unconstitutional to force you to buy this stuff. But if Obamacare passes, you will be on somebody's policy. That is certain. That's the memo. [Fox News, The O'Reilly Factor, 9/9/09, via Nexis]
The Law and Economics Center (LEC) at George Mason University School of Law is perhaps the one institution that brings together Charles Koch and Mickey Mouse. Koch's foundation, along with dozens of corporations, funds LEC. The Law and Economics Center, once labeled a "key ally" by the tobacco industry, organizes all-expenses-paid seminars for federal and state judges. LEC touted the location of one seminar as "sunny" and being known for its "great weather and proximity to Disneyland." At these seminars, the judges are exposed to a curriculum with a "free-market, anti-regulatory bent." As Fox News and other right-wing media conduct a ritualized freakout over the Ninth U.S. Circuit Court of Appeals conference in Hawaii, the Law and Economic Center's activities, which shape how judges understand the law, as opposed to where they hold their meetings, deserve scrutiny.
Not much interesting can be said about the Ninth Circuit conference brouhaha. As authorized by a federal statute, the various federal judicial circuits routinely gather their judges and the lawyers who practice in their courts for panel discussions and other educational activities. They meet somewhere in the circuit. For example, the Seventh Circuit, which includes Illinois, met earlier this month in Chicago. Similarly, Hawaii is part of the Ninth Circuit.
The Law and Economics Center's judicial programs are a different matter altogether. One judicial ethics watchdog has described it as "the nation's longest running and largest junketing program for federal judges." LEC was heavily involved in the tobacco industry's efforts to defeat cigarette litigation, and an internal Phillip Morris memo once listed it as one of the company's "Key Allies." Other tobacco companies also contributed to LEC, and Altria, the corporate successor to Phillip Morris, is a current donor.
The Law and Economic Center has provided a solid return on investment for its corporate donors. It once boasted that many judges who participated in its programs reported that doing so "totally altered their frame of reference for cases involving economic issues." Puffery? Perhaps, but it is difficult to minimize one federal judge's frank confession that he based a ruling in an antitrust case on the ideas he was exposed to in an LEC seminar:
U.S. District Judge Spencer Williams attended a LEC seminar while presiding over a predatory pricing case. While he was attending the LEC seminar at the Key Biscayne Hotel in Miami, the jury returned a verdict for the plaintiff in the amount of $5 million which, under the law, he was bound to triple to $15 million. Instead, he returned from the seminar and overturned the jury's verdict. He later wrote a letter to LEC that read in part: "As a result of my better understanding of the concept of marginal costs, I have recently set aside a $15 million anti-trust verdict."
The Senate is scheduled to consider the nomination of Paul Watford, one of President Obama's stalled judicial nominees, on May 21. Journalists covering the debate on the nomination would do well to consider the judicial vacancy crisis that is denying many Americans their day in court, Watford's record, and the bipartisan support his nomination has received. They need not, however, devote much attention to the so-called "Thurmond Rule." The "rule," which some have argued is a reason for the Senate to slow or even halt the confirmation of judges during a presidential election year, turns out to have been so inconsistently applied over the years that it is less a rule than a free-floating excuse for obstruction. In the face of a judicial vacancy crisis, such a vague and standard-free "rule" deserves little weight.
There is a real judicial vacancy crisis in the federal courts, with more than more than 75 judgeships currently vacant. Over 30 "judicial emergencies" exist, in which vacancies leave courts so understaffed that cases pile up and people and businesses seeking justice are faced with lengthy delays in having their cases heard. The crisis is in large part the result of unprecedented obstruction President Obama's nominees have faced. Presidents Clinton and Bush had just over 200 lower court judges confirmed during their first terms, but after three and a half years of the Obama presidency, the Senate has confirmed only 145 of his judicial nominees. The vacancy crisis will persist, and deepen as a result of additional retirements, unless the Senate picks up the pace.
The vote on Paul Watford's nomination could say a lot about whether it will do so. Senate Majority Leader Harry Reid has broken a threatened filibuster of Watford's nomination, and a vote will take place today. Journalists covering the vote might want to look into to Watford's record as a former Supreme Court clerk and the endorsements he has received from leading conservative and libertarian lawyers, including leaders of the Federalist Society.
Some have also raised the so-called Thurmond Rule (attributed to former Senate Judiciary Committee Chairman Strom Thurmond) as a factor to consider regarding nominations. Already in January 2012 Senator Charles Grassley, the ranking minority member of the Senate Judiciary Committee, invoked the rule as a justification for an even slower pace by the Senate on judicial confirmations. Journalists need not, however, spend much time puzzling over the so-called rule in trying to understand either Watford nomination or the Senate's broader role in the nominations process.
As details continue to emerge of the latest Wall Street scandal -- J.P. Morgan Chase's $3 billion trading loss - many investors would no doubt be surprised to learn that a below-the-radar effort is underway to virtually eliminate their ability to hold corporate management accountable. If this campaign succeeds, it will block investors alleging fraud, insider trading and accounting scams in financial markets from going to court, and force them into a corporate-friendly arbitration system that limits their rights and keeps Wall Street's wrongdoing behind closed doors. Consumers of credit card, cell phone and banking services (which is to say, most Americans) have already lost to forced arbitration their right to use class action lawsuits to hold corporations accountable, thanks to recent Supreme Court decisions. Significant though the consequences would be of adding investors to this list at a time when misconduct on Wall Street dominates the headlines, the effort to replace investor class actions with forced arbitration has received almost no attention in the media.
In recent months there have been several attempts to force investors in certain corporations into arbitration and strip them of the power to hold the companies publicly accountable for fraud, negligence or other misconduct via class action lawsuits. An attempt by The Carlyle Group to force arbitration by investors as part of its initial public offering was withdrawn by the company in the face of opposition from the Securities and Exchange Commission (SEC), the agency charged with regulating the financial markets. In two other cases, the managements of Gannett and Pfizer, to their credit, opposed shareholder proposals seeking to force arbitration, and argued to the SEC that the proposals violated federal securities law. In each case, the SEC agreed. In addition, a similar proposal was made in connection with Frontier Communications; Frontier's board recommended that shareholders vote against the arbitration proposal, and it was defeated.
Although the American Legislative Exchange Council (ALEC) has been in the spotlight in recent weeks for promoting legislation similar to the Florida "Kill at Will" law at issue in the Trayvon Martin case, for decades the organization has been quietly "ghostwriting the law" to the benefit of its big business funders and the detriment of consumers, investors and victims of corporate wrongdoing. Increased attention on the shadowy organization is revealing that ALEC's now-notorious and since-disbanded foray into gun rights and voter suppression was a tangent from a massive, concerted campaign to set aside laws that hold corporations accountable when they pollute the environment, sell dangerous products or defraud consumers. All the more effective for its stealthy nature, ALEC's war on corporate accountability has received only a fraction of the scrutiny the media has focused on the Kill at Will controversy.
ALEC's Civil Justice Task Force drives this agenda under a banner of "tort reform." A "tort" is a wrong that gives rise to a legal claim. Tort lawsuits seek to compensate victims for physical, economic and psychological harm and deter future negligence or intentional wrongdoing. Because most tort law is made at the state level and many cases are tried in state courts, ALEC's state-focused Civil Justice Task Force is a crucial element of a broader corporate-driven "tort reform" effort.
ALEC shapes state law by drafting and promoting "model legislation," and the Civil Justice Task Force actively engages in this effort, as illustrated by two documents. The first, recently brought to light by the public interest organization Common Cause, is a spreadsheet titled "ALEC State Tracking: Good Legal Reform Bills." The spreadsheet tracks 160 pieces of legislation relating to "tort reform" from 38 states in great detail. Among the categories of information collected in the spreadsheet are the sponsor of each bill, his or her political party; the title of the bill, the related ALEC model bill, any hearings held on the bill and its status. Thus, when the Civil Justice Task Force took this snapshot in 2011, 160 pieces of legislation, each of them inspired by an ALEC model bill, had been introduced in the state legislatures of 76 percent of the states. The "Good Legal Reform Bills" document is proof of the sweeping scope and sophisticated nature of ALEC's campaign to limit corporate accountability.
A second document gets at the equally ambitious substance of the campaign. Titled The State Legislator's Guide: Tort Reform Boot Camp, the 44-page document sets out 13 pieces of model legislation, along with "talking points" in support of each provision; tips on "gauging your opposition;" and "steps in the right direction" that a legislator might pursue if political or legal barriers prevent full adoption of the proposal. The document is "tort reform" in a box, equipping corporate-friendly legislators to introduce, promote and enact the Civil Justice Task Force's agenda. The effectiveness of ALEC's techniques, as represented by Tort Reform Boot Camp, is illustrated by the organization's claim that between 1999 and 2011 43 states "enacted legislation based on ALEC Civil Justice Task Force legislation."
Jonah Goldberg's recent Washington Post op-ed on five "cliches" that he imagines progressives employ misses badly on many scores, but none so wildly as when Goldberg turns his attention to the Constitution. As is his wont, Goldberg picks a fight with a straw man -- that progressives embrace a "living constitution" completely divorced from the document's text and history -- and suffers a technical knockout at the hands of even this feeble opponent.
Goldberg attempts to tar progressives with hypocrisy for basing their opposition to conservatives' post-9/11 overreaching on civil liberties on the text, history and principles of the Constitution. Even if conservatives were, as he breezily puts it, "stretching things," supposedly unprincipled progressives had no grounds for complaining. With this crude caricature, Goldberg gives away the game.
There is in fact a real debate about what the Constitution means and how to interpret it. On the one hand is what a leading scholar has called the "fundamentalist" view, held by many of Goldberg's fellow conservatives, that the Constitution should be "strictly construed" in a narrow manner that if applied in the past would have rejected much of the progress the nation has made toward justice. Under this view, the Constitution has nothing to say about segregated schools, bans on interracial marriage and blatant gender discrimination.
The opposing view, first and perhaps best expressed by Chief Justice John Marshall, himself a signer of the Constitution, is that the document's open-ended provisions (such as "due process" or "freedom of speech") should be read to give meaning to the principles they embody. In one of his most important opinions, he wrote that "we must never forget that it is a Constitution we are expounding."(emphasis in orginal) By this he meant that the Framers did not intend the Constitution to be so detailed as to spell out definitive answers in every possible situation, but rather to establish principles to be applied to address specific questions.
In this view, the Constitution's words, its history and the principles it embodies are all important in determining its meaning in particular cases. As Pamela Karlan, a leading progressive constitutional scholar has written:
[T]he Constitution has endured because judges, elected officials and citizens throughout our history have engaged in an ongoing process of interpretation. That interpretation reflects fidelity to our written Constitution. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that sustain their vitality over time. Fidelity to the Constitution requires us to ask not how its text and principles would have been applied in 1789 or 1868, but rather how they should be applied today in light of the conditions and concerns of our society.
There is a real debate to be had about these competing constitutional visions. Unfortunately, Goldberg's game of "I know you are; now what am I?" contributes nothing of value to it.
A recent New York Times article on the Obama Administration's response to Republican congressional obstructionism makes extensive use of the terms "unilateral and "unilateralism." The article suggests hypocrisy on the part of President Obama, stating that "[a]s a senator and presidential candidate, [Obama] had criticized George W. Bush for flouting the role of Congress." But it offers only a single example of an action based on the president's constitutional authority to act without congressional authorization, the use of the recess appointment power.
Instead, the article cites numerous instances of a very different phenomenon: Presidential action based on powers delegated by Congress. Time and again, the administration has asked Congress for legislation to address pressing problems, been faced with obstruction, and fallen back on authority it believes was already granted by previous legislation. This approach is different in kind from the Bush administration's repeated assertion of a right to ignore or act contrary to statutes, including assertions made in the former Bush administration official John Yoo's infamous "torture memos."
The article summarizes the administration's approach as follows:
But increasingly in recent months, the administration has been seeking ways to act without Congress. Branding its unilateral efforts "We Can't Wait," a slogan that aides said Mr. Obama coined at that strategy meeting, the White House has rolled out dozens of new policies -- on creating jobs for veterans, preventing drug shortages, raising fuel economy standards, curbing domestic violence and more.
Each time, Mr. Obama has emphasized the fact that he is bypassing lawmakers. When he announced a cut in refinancing fees for federally insured mortgages last month, for example, he said: "If Congress refuses to act, I've said that I'll continue to do everything in my power to act without them."
The article acknowledges that the Obama administration has not claimed presidential power to override statutes, as the Bush administration did:
"Obama's not saying he has the right to defy a Congressional statute," said Richard H. Pildes, a New York University law professor. "But if the legislative path is blocked and he otherwise has the legal authority to issue an executive order on an issue, they are clearly much more willing to do that now than two years ago."
Thus, according to Pildes, the administration has not altered its view of presidential power, but merely shifted political tactics from emphasizing bipartisan cooperation to placing a premium on taking action.
Georgetown University law professor and former Obama administration Office of Legal Counsel official Marty Lederman argues that the article's central failing is that it does not make clear the extent to which the administration is acting under authority it argues it has under existing legislation.
From Lederman's blog post:
A court of appeals judge appointed by President George W. Bush issued a sweeping radical libertarian manifesto in a recent opinion. In doing so, D.C. Circuit Judge Janice Rogers Brown signaled a desire to strike down numerous health, safety and consumer protection laws. Brown's opinion is further evidence that the media should give greater coverage to the courts of appeal, which often have the last word on legal issues that shape the life of every American.
Brown's concurring opinion, which was joined by Judge David Sentelle, is a frank and enthusiastic embrace of libertarian economic theories, and a scornful rejection of the democratic process:
[The case] reveals an ugly truth: America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.
First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to "adopt whatever economic policy may reasonably be deemed to promote public welfare." ... Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review.... Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the "democratic process." (emphasis added).