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Obama Flunks the Constitutional Test

May 1, 2015 in Economics

By Ilya Shapiro

Ilya Shapiro

As the world awaits the Supreme Court’s rulings on Obamacare and gay marriage, pundits have engaged in a phony war that misses a larger story: the court’s rejection of the government’s extreme claims of unlimited federal power. Indeed, the Obama administration has already lost unanimously 20 times, having passed in its first five years the Bush DOJ’s number across two full terms (15).

While it’s still too early to make conclusions about the current Supreme Court session, in its previous three terms—effectively in the 30 months from January 2012 to June 2014—the government’s goose-egg rate was three times Bush and double Clinton (23 in eight years).

Again, those are statistics for cases in which President Obama failed to pick up even the votes of his own nominees. The overall rate looks even worse: in the last two terms, the solicitor general’s office won 39 and 55 percent of its cases, against a 50-year average of about 70 percent.

Has a U.S. president ever been shut out before the Supreme Court so often?”

Since some people think that overall rate isn’t a fair measure given that five of the nine justices were appointed by Republican presidents—although the government record in 5-4 cases isn’t bad—let’s stick to the recent cases where the justices fully agreed.

Between 2012 and 2014, the high court ruled unanimously against the government in such disparate areas as religious liberty, criminal procedure, property rights, immigration, securities regulation, tax law, and the presidential recess-appointment power. Here’s a sampling:

1. In Hosanna-Tabor Church v. Equal Employment Opportunity Commission (2012), the government sued a church school that fired a teacher for violating one of the church’s religious tenets. The unanimous court ruled that punishing a church for failing to retain an unwanted teacher in this context violates the First Amendment.

2. In United States v. Jones (2012), the government claimed the power to attach a GPS device to a suspected drug dealer’s car and monitor his movements without a warrant. While the justices had differing opinions on why this action violated the Fourth Amendment, all agreed it was unconstitutional.

3. In Sackett v. Environmental Protection Agency (2012), the government denied property owners the right to challenge an order to stop building their house. The court ruled that access to courts is the least the government can provide in response to “the strong-arming of regulated parties” by federal agencies.

4. While the conventional wisdom regarding Arizona v. United States (2012) is that the high court smacked down a perniciously …read more

Source: OP-EDS

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