Obama “Disses” the Federal Courts

The United States never was intended to be a democracy, but rather a compound republic delegating clearly enumerated powers to the federal government and creating a masterfully designed system of checks and balances amongst its three branches meant to limit Washington’s intrusions on the sovereignties of the several states and the liberties of their peoples.

As attentive students of the New Deal know, however, any brake that the federal judiciary might think of applying to the expansion of the central government’s powers was undermined by FDR’s proposal to “pack” the Supreme Court after his landslide reelection to the White House in 1936. Although it failed to become law, the court-packing plan nevertheless soon was followed by the famous “switch in time that saved nine”, thereby ushering in a period of judicial deference to the executive and legislative branches that fulfilled the president’s intent, namely securing a working majority of justices willing to clear the path of constitutional objections to the Social Security Act, the Wagner Labor Relations Act, minimum wages and other legislative monuments to his “progressive” agenda. More than any other consequence of FDR’s politically-motivated meddling, the Commerce Clause thereafter became a dead letter, as Ms. Kagan candidly admitted during her recent confirmation hearings.

Mr. Obama apparently has as little respect for the third branch of government as FDR had. Twice rebuffed in tests of the moratorium he imposed on offshore deepwater drilling by the federal courts, issued by executive order on May 27, the president responded by ordering a new ban on exploratory drilling in waters deeper than 500 feet, effective until November 30.

The administration argues that a halt is justified until the cause of the explosion of the Deepwater Horizon platform has been determined, presumably by a “blue ribbon” panel of friendly “experts”. The president, Interior Secretary Salazar and other public officials must not be readers of Rolling Stone, the most recent issue of which identifies two proximate causes of the accident in the Gulf: the failure adequately to maintain and test the rig’s “blowout preventer” and, what is perhaps more important, to install a second “blind sheer ram” that may have capped the well after the first one had failed to do so by the slimmest of margins.

In the coming days and weeks, we should expect to see the U.S. Justice Department shop for a more supine federal court – one in the Ninth Circuit, for example—to fend off challenges to its latest deepwater drilling moratorium. Regardless of the outcome of the legal maneuvering, a president unwilling to take a judicial “no” for an answer embodies exactly the kind of executive hubris that the Founding Fathers resolved to frustrate.

William F. Shughart II is Research Fellow and Senior Fellow at the Independent Institute, the J. Fish Smith Professor in Public Choice at Utah State University, past President of the Southern Economic Association, and editor of the Independent book, Taxing Choice: The Predatory Politics of Fiscal Discrimination.
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