- The Washington Times - Wednesday, August 26, 2015

A federal judge in Texas has put President Obama’s deportation amnesty on hold, while another judge in the District of Columbia is poised to rule any day now on whether the House can sue to stop parts of the administration’s Obamacare spending.

Meanwhile, no fewer than six federal judges in the District are refereeing Mr. Obama’s broad pledges of transparency and how they stack up against the way his State Department operated under Hillary Rodham Clinton as secretary.

Indeed, much of Mr. Obama’s agenda — and his legacy — sits in the hands of federal judges across the country, who are hearing challenges to his immigration and environmental policies as well as bigger constitutional fights such as congressional Republicans’ charge that he has discarded the separation of powers that is meant to protect taxpayers’ wallets and rights alike.

“It is unusual for a president to have so much of his agenda contingent on judicial review,” said Darrell West, director of governance studies for the Brookings Institution. “It is a commentary on our current political situation that legislative gridlock has forced presidential action through executive decisions and this then created the need for judicial review.”

It has become so messy that the judges who are pushing the State Department to release Mrs. Clinton’s emails are beginning to get tangled.

“There’s a lot of overlap in all these cases, and I want to be mindful of that,” Judge Emmet G. Sullivan said during a hearing last week.

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The judges find themselves pushing Mr. Obama to be more transparent, forcing his administration to release Mrs. Clinton’s emails faster than he would have wanted, to go back and pore over her email server, and to try to wrangle documents out of her top aides from their time in government — all of which should have been part of the record years ago.

One of Judge Sullivan’s colleagues, Judge Richard J. Leon, outright scolded the State Department last month for slow-walking its response to The Associated Press’ open-records requests about Mrs. Clinton.

“I want to find out what’s been going on over there. I should say, what’s not been going on over there,” the judge said, according to Politico.

Legal analysts say it’s hardly surprising that a lame-duck president who has leaned on his own powers to move his domestic agenda finds himself at the mercy of the courts.

“This is what’s bound to happen if you have a lot of envelope-pushing executive action,” said Ilya Shapiro, a senior fellow in constitutional studies at the libertarian Cato Institute.

President George W. Bush’s agenda, by contrast, drew far less court scrutiny. While judges did weigh in on treatment of detainees in the war on terrorism, analysts said, the rest of his foreign policy agenda just wasn’t as ripe for court review.

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Fights over Mr. Bush’s top domestic priorities, such as the Medicare prescription drug benefit and the No Child Left Behind education law, were typically duked out in the political arena.

“During Bush’s presidency, there was more of a tendency to contest his policies through conventional means, such as elections and legislative action,” Mr. West said. “After Republicans lost their congressional majorities in 2006, Democrats used the legislature to fight Bush’s policies they did not like. There was less of a tendency to take him to court.”

Mr. Obama’s willingness to push the boundaries of executive power, however, has invited the challenges — and nowhere more so than on immigration, where he is being battered from both sides.

A federal appeals court in New Orleans is expected to rule any day on whether to uphold U.S. District Judge Andrew S. Hanen’s decision in Texas to halt Mr. Obama’s expansion of his 2012 amnesty for Dreamers to their illegal immigrant parents.

Meanwhile, Judge Dolly M. Gee in California ordered the administration to begin releasing illegal immigrant mothers and children by October, denting Mr. Obama’s hopes that a strict detention policy will deter more Central Americans from making the perilous journey north.

Carl Tobias, a professor at the University of Richmond School of Law, said the president is facing activists on both sides who aren’t getting what they want from him, and turn to the courts.

“Everybody is ready to litigate,” he said.

That includes the House of Representatives itself, which sued Mr. Obama last fall over his decision to twice delay the Affordable Care Act’s insurance mandate on employers and to continue reimbursing insurers who have reduced co-pays and deductibles for qualified Obamacare enrollees as a condition of participating in the state-based health care exchanges.

Republican plaintiffs say Congress never authorized that spending, and even zeroed out funding for it, so Mr. Obama was ignoring the law by continuing to disburse the funds.

“If this president can get away with making his own laws, future presidents will have the ability to as well,” Boehner spokesman Kevin Smith said. “The House has an obligation to stand up for the Constitution, and that is exactly why we are pursuing this course of action.”

The courts have been reluctant to let legislators sue the executive branch, though, making the House Republicans’ bid a key test case.

“It would be a big deal if an appellate court, or the Supreme Court, were to find that one or both Houses had standing to challenge the executive branch’s interpretation of the law,” said Amanda Frost, a law professor at American University.

The Justice Department, which is defending Mr. Obama in the courts, did not respond to a request for comment on this case or the others.

If House Republicans get standing and then succeed on the merits of their lawsuit, too, it would spell trouble for Mr. Obama’s namesake law. Nearly 6 million Obamacare customers with incomes from 100 percent to 250 percent of the federal poverty level rely on the payments, according to recent analysis by Avalere Health, a Washington-based consultancy.

“The cost-sharing reduction payments are what, in fact, make health care affordable,” said Timothy Jost, a law professor at Washington and Lee University who closely tracks the law.

Republicans are feeling confident, though. In May, U.S. District Judge Rosemary M. Collyer seemed skeptical of a Justice Department attorney who insisted that the health care law authorized the funding and that Republicans would have to find a legislative solution to their complaints.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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