My USA Today Op ed on the Troubling Implications of Cases where the Administration Loses 9-0 Decisions in the Supreme Court

USA Today has just posted my op ed on the troubling implications of cases where the executive branch loses unanimous Supreme Court decisions:

Those of us who follow Supreme Court decisions spend most of our time debating the contentious issues that divide justices 5-4 along predictable ideological lines….

But we might do well to pay more attention where the court rules unanimously, particularly when they go against the White House.

When a president pursues policies that require such expansive federal power that he can’t get a single justice to agree, something is probably amiss.

Such overreach, though, has become a part of our political culture. Administrations of both parties are often unwilling to accept constitutional limits on their authority…

In Horne v. Department of Agriculture, a decision issued in June, the justices unanimously rejected the Obama administration’s argument that raisin farmers did not have the right to go to court to contest the seizure of hundreds of thousands of dollars worth of raisins….

Horne was the administration’s third unanimous defeat in a property rights case in 18 months….

Obama isn’t the first president to promote dubious theories of federal power. George W. Bush’s administration, among others, did so as well….

The fault lies not only with the offending politicians, but also with the voters and political elites who too often excuse or ignore their unconstitutional actions.

Sometimes, the courts can protect us against overreaching administrations. But many abuses of power cannot or will not be litigated. If we want to enforce constitutional limits on government, we cannot rely on judges to do the job alone.

USA Today originally intended to run this op ed around the time the Supreme Court term ended. But I think the broader issues it raises are still timely now.

UPDATE: For those who may be interested, here’s a post I wrote about the Horne decision, which also includes links to my analyses of many of the other 9-0 cases mentioned in the column.

UPDATE #2: I would like to thank USA Today Forum Editor David Mastio for suggesting the idea of a column on this topic.

UPDATE #3: I recently posted the following comment at the USA Today website, which may be worth reposting here, too:

This is in response to some commenters who claim that the arguments in these cases were not actually developed by the Obama administration: While the facts of several of the cases mentioned date back to before 2009, it was the Obama administration that litigated them both in the Supreme Court and in lower appellate courts. Therefore, it was they who decided the legal arguments that would be made in each case. Moreover, the higher a case goes, the more scrutiny it usually gets at higher levels in an administration. There is a big difference between lower-level officials deciding to engage in dubious behavior in a given case and the administration as a whole deciding to adopt extreme legal arguments that, if accepted by the Supreme Court, would license similar abuses in all future cases around the country. Finally, even if a previous administration had taken a particular position in the lower courts, the Obama administration was not required to maintain that position in the Supreme Court or the courts of appeals. Arguments made at the trial court level are often changed or dropped at the appellate level as more senior officials reconsider them. For all of these reasons, it is entirely accurate to say that these were positions adopted by the Obama administration. Finally, it’s worth reiterating that I am not suggesting that the Obama administration is uniquely abusive in this regard. Rather, I repeatedly emphasized that the Bush administration (and to some extent, its predecessors) was also guilty of serious constitutional overreaching.

In 2008, then-candidate Obama and many of his supporters quite justifiably took the Bush administration to task for overstepping constitutional limits on its authority. For that very reason, among others, “Bush did it too” is not a good defense when similar overreaching happens during the present administration.

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