REGULATION NATION: Courts emerge as hurdle to Obama regs
By Ben Goad and Julian Hattem - 08-29-13 06:00 AM ET
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President Obama’s frequently rocky relationship with the judicial branch has emerged as a major obstacle to his second term goals.
With most of Obama’s agenda going nowhere in a gridlocked Congress, the president hopes to enact many of his second-term goals on the environment, workplace protections, healthcare and financial reform through regulations.
Agencies will be taking the lead in policymaking, predicts Jody Freeman, the director of Harvard Law School’s environmental law program and a former lawyer in the Obama White House, “and the primary check on their power is going to be the courts.”
That gives the nation’s federal court system, which has been routinely at odds with the White House, enormous sway as arbiters in disputes over the limits of executive authority.
“The relationship is sort of like a bad marriage — neither can get out of it, so they just keep fighting,” UCLA law professor Adam Winkler said of the Obama administration and the courts.
The president’s critics complain Obama is already flouting the law with aggressive rule-making.
Eighty-nine active lawsuits have been brought by roughly two dozen GOP state attorneys general against federal agencies, according to data from the Republican State Leadership Committee (RSLC).
“This administration seems to be willing to get way beyond any authority granted by Congress,” said Chris Jankowski, the group’s president.
Obama’s defenders counter that the administration is merely pursuing his policy agenda through any means available. Some of the forthcoming climate rules, for instance, are being drafted under the Clean Air Act, which was approved more than four decades ago and was last updated in 1990.
“He’s decided to use the tools in his toolbox,” said Sen. Barbara Boxer (D-Calif.), chairman of the Senate Committee on Environment and Public Works.
Many of Obama’s regulations will be judged by the U.S. Court of Appeals for the D.C. Circuit, considered the nation’s second most powerful court.
Three of its 11 seats are vacant — one since 2005.
Obama has nominated people to fill the vacancies, but Republicans have alleged that he is attempting to “pack” the court with favorable judges to rubber-stamp his regulations.
Republicans in the Senate have blocked the approval of several of Obama’s nominees. Only one Obama nominee to the D.C. court has been approved during his years in office.
C. Boyden Gray, a lawyer who worked in the White Houses of Ronald Reagan and George H.W. Bush, argues Obama is trying to use his nominations to “shift the balance” of a court that has been balanced for decades.
He also argued that the court has “the lowest caseload in the country of any circuit court,” and doesn’t need any new judges.
Obama and his supporters have replied that he’s merely doing his job.
“I didn’t create these seats,” Obama said in the White House Rose Garden while announcing his new nominees. “I didn’t just wake up one day and say, let’s add three seats to the District Court of Appeals. These are open seats. And the Constitution demands that I nominate qualified individuals to fill those seats.”
The D.C. court has, in many cases, dealt damaging blows checking Obama's executive reach.
Earlier this month, for instance, it ruled that his call for the Nuclear Regulatory Commission (NRC) to halt its consideration of a controversial nuclear waste site at Nevada’s Yucca Mountain was an illegal violation of the law.
Judge Brett Kavanaugh, seen as a potential Supreme Court nominee in a conservative administration, wrote for the majority in a three-judge panel that the case raised “significant questions about the scope of the Executive’s authority to disregard federal statutes.”
The D.C. Circuit court is also where, in January, President Obama’s 2012 appointments to the National Labor Relations Board (NLRB) were ruled unconstitutional, since they happened during a short break in the Senate’s calendar that did not constitute a recess for the purposes of presidential appointments.
The Supreme Court has agreed to hear the case during its next term. If the appeals court ruling stands, it could invalidate more than a year of the NLRB’s decisions.
The courts have not always acted as a hurdle to regulations, however.
Liberal and environmental groups have used the court system to sue federal agencies to finalize overdue regulations on everything from endangered species listings to air quality standards.
Business groups and Republicans have charged that the practice has allowed agencies to issue rules costing hundreds of millions of dollars each year via court settlements, behind closed doors and outside of the normal regulatory process.
Groups behind the suits contend that they’re merely holding the government up to the standard of the law.
“It’s the fundamental way of how our system works is checks and balances,” said Heather White, the executive director of the Environmental Working Group. “And it’s critical that third parties are able to say, ‘This is what the law says: You’re not doing your job, and you need to do your job.’”
The limits of regulators’ ability to ignore legal deadlines burst onto front pages earlier this summer when the administration announced it would delay for a year the employer mandate in the Affordable Care Act.
A portion of the law mandates that employers with more than 50 full-time workers offer health insurance or pay a fine by Jan. 1. But the administration, citing business concerns, pushed that back until 2015.
The decision drew harsh criticism from congressional Republicans.
“He tells people, 'Part of the law we'll go ahead and enforce, other parts we won't,” Rep. Mike Kelly (R-Pa.) said.
Many of the legal questions will likely not be resolved for years to come, leaving the fate of several of Obama’s central policy goals in jeopardy.
“Courts are going to be really central players to figuring out exactly how much Obama can accomplish over the coming years,” said Philip Wallach, a fellow at the Brookings Institution.
