Tuesday, February 14, 2017

Presidents vs. Constitution

Obama stretched and bypassed the US Constitution with this expected result:
-- Obama lost a higher percentage of Supreme Court cases than any other President in modern times.

I didn't include this fact in my prior January 28, 2017 post "Obama's Top Ten Accomplishments" (link below) only because I found the relevant study the next week:

Obama had the usual loose, left-wing interpretation of the US Constitution -- am ever-changing document that could be stretched and reinterpreted to support left-wing goals.

After Republicans gained control of the House of Representatives in January 2011, Obama decided he would bypass Congress with his "phone and pen".

Obama decided to force his leftist "big government" agenda down the throats of the American public through:
(1) Executive orders,
(2) Refusing to enforce existing laws he did not like, and
(3) A lawsuit settlement trick used by his agencies.

Obama knew Republicans in the House would never impeach him for his unprecedented bypass of Congress -- they should have, but they feared Republicans would be called "racists" for the next century.

Obama knew his leftist-biased executive orders would act as temporary laws, until a court found them unconstitutional, or until a future President reversed them with new executive orders.

So in the past six years, too many executive orders were used to create new "laws" -- not the purpose of executive orders as defined in our Constitution.

Obama also chose not to enforce some laws -- particularly immigration laws.

And the Obama Administration also allowed government agencies, mainly the EPA, use a smarmy trick to create new "laws" by settling lawsuits filed by environmental activists against agencies, that the agencies could have won in court.

For example, a lawsuit might claim the EPA must do something the activists wanted done, that was not specified in any existing laws.

The EPA would have, or could have, won the lawsuit in court, but deliberately chose to "lose" with a settlement.

Obama's EPA knew every settlement created a precedent for other activists to win similar (future) lawsuits -- essentially creating a new "law".

And it wouldn't be obvious the EPA was colluding with the environmental activists if the court settlements didn't give them 100% of what they demanded.

A new study released January 20, 2017, by Lee Epstein (Washington University) and Eric Posner (Kirkland & Ellis), analyzed Supreme Court decisions vs. Presidents.

When a President goes to the Supreme Court, he usually wins.

                                                Percentage of
                                               Supreme Court        
                                                Decisions Won       
Roosevelt through Obama           65%             
Reagan only                                   75%            
After Reagan
(Clinton, Bush and Obama)          60%             
Obama only                                    50.5%

84 terms and 13 Presidents were studied: 

Presidents won 65.1% of the 3,778 cases 
(and captured 61.3% of the Justices' 32,444 votes).

In comparison, the 50 individual states combined won a significantly smaller percentage of 'their' Supreme Court cases during the same period
(53.3% of 2,102 cases)

President Obama had a lower "win rate"
(50.5%) than all other Presidents since Franklin Roosevelt, even though states did better than average during his administration (their 55.4% win rate while Obama was President was two percentage points better than their 53.3% long-term average from Roosevelt through Obama).

The study included all orally argued cases decided from Franklin Roosevelt through Barack Obama that resulted in a signed majority opinion, or a judgment.

"Using the petitioner and respondent variables in the Database, we identified cases of concern to the President: those in which the United States, an executive actor
(e.g., the Attorney General or the President himself), or a federal agency was a party."

About 40% of all Supreme Court cases were determined to be "of concern" to the President at the time.

"Before Reagan, the President "won" 65% of the decisions, and got 61% of all Supreme Court Justice votes.

During the Reagan years, those percentages increased significantly to 75% of decisions and 68% of votes.

After Reagan, the percentages dropped to 60% of decisions and 58% of votes".

"The End of Supreme Court Deference to the President?"
by Lee Epstein & Eric Posner

January 20, 2017 

Lee Epstein is the Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis;

Eric Posner is the Kirkland and Ellis Distinguished Serv
ice Professor of Law and Arthur and Esther Kane Research Chair at the University of Chicago.