Friday, May 11, 2012

Obama’s legal problems

By now most Americans are familiar with the legal challenges to President Obama’s signature legislation, the Affordable Care Act. In March, the Supreme Court heard three days of oral arguments on the constitutionality of the various aspects of the law including the government’s mandate that all Americans must buy health insurance. Although the Court has not yet ruled on the case, pointed questions from the justices lead many observers to believe that at least part of the law will be struck down.
If the Supreme Court does rule that the Affordable Care Act is unconstitutional, it will not be the first time that the Obama Administration has been chastised by the judicial branch. Last year, President Obama’s Interior Department was held in contempt for violating a federal judge’s ruling striking down the moratorium on offshore oil drilling imposed after the BP oil spill in 2010. After the judge ordered the moratorium lifted, the Interior Department continued to refuse to issue drilling permits for months. Interior Secretary Ken Salazar also imposed onerous safety rules on drilling that the judge ruled were in violation of federal law.
The Obamacare case is not the first time that the Obama Administration has found itself in legal trouble. In February 2011, a federal judge held the administration in contempt for continuing its deepwater oil drilling moratorium after the policy was struck down. According to Bloomberg, the government acted with “defiance” and “determined disregard” in refusing to issue drilling permits even after a court struck down Obama’s ban on offshore drilling.
President Obama’s EPA has suffered several defeats recently. In a March 2012 Supreme Court ruling, an Idaho couple was building a house when the EPA ordered them to restore the wetlands on their property and threatened fines of $75,000 per day according to the Washington Post. There was no noticeable water on the property. Lower courts ruled that EPA compliance orders were not subject to judicial review, but the Supreme Court ruled unanimously that the couple could challenge the EPA’s order in court.
Another EPA case involves the agency’s refusal to approve a Texas plan for implementing air quality standards. According to Businessweek, a U.S. Court of Appeals ruled that the EPA had “no legal basis” to reject the Texas standard after it failed to identify where federal standards were not met and missed a deadline to rule on the plan by three years according to the Austin Statesman.
The EPA has recently lost another case to Texas as well. In December 2011, the U.S. Court of Appeals issued a stay on an EPA rule regarding cross-state air pollution that was set to take effect in January. The ruling means that the EPA regulations will not take effect until the court makes a decision on the case. Arguments in the case were heard in April, but the court has not issued a decision yet. Georgia is also a party to the cross-state lawsuit.
In more litigation relating to the EPA, the Southeastern Legal Foundation, a Marietta, Ga. based group, is challenging the Obama EPA’s decision to unilaterally amend the Clean Air Act to allow it to regulate carbon. On April 2, Shannon Goessling, the executive director of the Southeastern Legal Foundation, was interviewed about the lawsuit on the Michael Medved Show. (Listen in Atlanta on AM-920. The interview is archived at and the SLF website.) Goessling said that 15 Georgia businesses and business associations as well 7 members of Congress from Georgia are among the parties to the lawsuit.
According to Goessling and SLF court filings, six million businesses would potentially be subject to EPA carbon rules under the new regulations. The expansion of EPA regulatory power would have a devastating effect on the economy, dramatically increasing the cost of energy and costing millions of jobs. The result of the regulation would be to reduce the world temperature by 0.00071 degrees Celsius, “70 times smaller than the smallest change that can be detected” according to the SLF brief. The annual emissions reduced by the regulation would be replaced by China in 13 days.
The question is whether the EPA had the right to regulate carbon at all. Congress failed to pass cap-and-trade carbon regulation in 2010. Since Congress did not pass the legislation, President Obama’s EPA chief, Lisa Jackson, decided to bypass Congress and regulate carbon as a pollutant in the wake of a Supreme Court ruling, Massachusetts v. EPA, which directed the agency to review whether it could legally regulate carbon. According to the Atlanta Business Chronicle, EPA regulations will take effect on power plants this month and refineries in November 2012. If the regulations are allowed to take effect, energy costs are poised to skyrocket. The case was recently heard by a federal appeals court which has not yet ruled.
The rash of cases against the EPA for unconstitutional and illegal overreach reflects the attitude of EPA Regional Administrator Al Armendariz who recently surfaced in a video favorably comparing EPA enforcement actions to Roman crucifixions. Armendariz implied that he felt the need to make an example of a few companies in order to intimidate the rest. He resigned after the video went public.
Other members of the Obama Administration have their own personal legal problems. Attorney General Eric Holder may be held in contempt of Congress for his role in the cover-up of the Fast and Furious scandal according to ABC News. Holder’s Justice Department has not complied with congressional requests for many documents detailing the failed gun sting. In Operation Fast and Furious, federal agents allowed straw purchasers to smuggle thousands of guns purchased in the U.S. into Mexico. The guns were used in several murders, including that of U.S. Border Patrol agent Brian Terry in December 2010.
Finally, the Obama Administration was the plaintiff in a case against Arizona’s controversial immigration law. The administration sued to block implementation of the law on the grounds that only the federal government has the right to set immigration policy. Nevertheless, according to Yahoo, the Supreme Court appeared ready to uphold at least part of the Arizona law. At times even liberal judges were critical of the government’s case.
President Obama’s legal problems reflect a disregard for the letter of the law and an arrogant attitude that the government always knows best. Ironically, the disregard for constitutional principles and the rule of law may sink his signature legislative accomplishment and be the ultimate undoing of his presidency.

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