Supreme Court’s 2015 term will impact 2016 race

If you liked the legal battles of 2014, then you’re going to love 2015. The Obama administration’s ambitious second-term agenda will continue to bump up against the Constitution as it has for the last six years, highlighting the importance of the Supreme Court to the upcoming presidential election. 

In 2014, the Supreme Court repeatedly rejected the Obama administration’s attempts to expand executive power in matters from recess appointments to free speech. Apparently unfazed by the courts’ unwillingness to accept expansive interpretations of executive “discretion,” however, the Administration doubled down. It adopted its now-famous (but constitutionally dubious) “pen and phone” strategy of legislating through executive fiat. The most significant legal battles of 2015 will center on this decision. 

{mosads}Of these battles, the most noteworthy is a case challenging the Obama administration’s attempts to rewrite Obamacare unilaterally in order to spend billions of dollars on unlawful tax subsidies. That rewriting is the subject of King v. Burwell, in which the Supreme Court will decide whether the law’s insistence that tax subsidies go to insurance exchanges “established by the State” also allows exchanges established by the federal government to get in on the action. 

No less important will be challenges to the administration’s claim that it can refuse to enforce existing legislation. This view has already provoked a steady stream of lawsuits, with more likely on the way. Indeed, several states have filed lawsuits challenging the new executive action on immigration, while the House of Representatives has filed its own lawsuit against Obama’s refusal to honor the terms of Obamacare, which the president personally signed. And just last spring the outgoing Attorney General, Eric Holder, urged state attorneys general to betray their own constituents by refusing to defend state marriage laws in court, even though none of the laws’ possible legal defenses had ever been rejected by the Supreme Court. 

The administration’s allergies to the rule of law raise fundamental questions about the scope of federal criminal law. Congress’s tendency to define new crimes to show that it is tough on crime has also significantly increased the chances that relatively minor conduct will receive a harsh punishment from the criminal justice system. 

The Supreme Court has been particularly vocal about its concerns in this area. In an oral argument before the Supreme Court last month, for instance, the Supreme Court castigated the government for using a statute designed to punish destruction of evidence of white-collar crime against something completely different: tossing undersized fish overboard against the instructions of a miffed game warden. If the Supreme Court avails itself of the opportunity to reel in Congress’s willy-nilly expansion of federal criminal laws, it would extend a trend begun this past year, when it ended the federal prosecution of a domestic dispute under a chemical weapons statute. 

Debates about executive power are especially timely with the presidential election less than two years away. Whether Democrat or Republican, the next president may appoint as many as three justices to the Supreme Court, giving him (or her) the opportunity to influence federal jurisprudence for several generations. As we begin thinking about how to undo the damage done by the current presidency, then, we should also ask how the next president will exercise the power to make nominations to the Supreme Court. 

What sort of justices would a good president appoint to the Supreme Court? Justices who will let Congress and the President do whatever they like? Those who turn their own policy views into constitutional law? Or principled constitutionalists who faithfully interpret and apply the Constitution and the laws?  

Anyone seeking power to make such appointments should be perfectly clear about how they intend to use it. The stakes for the country—and the Constitution—could hardly be higher.

Keim is counsel to the Judicial Crisis Network.