President Obama’s recent remarks about King v. Burwell have triggered a debate about the propriety of the President commenting on a pending case before the Justices. Professors Matthew Eshbaugh-Soha and Paul M. Collins, Jr. conducted a study that analyzed Presidents--from Eisenhower to Obama--who made comments about Supreme Court cases. According to their research, Presidents have mentioned 850 Supreme Court cases in their public remarks. However, only on 47 occasions have the remarks concerned pending cases, 13 of which were made after arguments when the case was submitted. The authors concluded that while it is “not unheard of for presidents to take positions on cases before they are decided . . . what makes Obama’s remarks stand out is that they are bolder and more extensive than what most presidents have said in the past.”
To place President Obama’s recent comments into context--based on information kindly provided by the authors--I calculated how close in time the statements were to the oral arguments and decision day. By far, President Obama has set himself apart by opining on the merits of the case after oral arguments have been submitted, and pre-emptively faulting the Justices if they were to rule against the government.
President Lyndon Johnson
Three days after oral arguments in Hearts of Atlanta Motel v. United States, a challenge to the 1964 Civil Rights Act, President Johnson commented on the difficulty of implementing the law, noting “it is now in the Supreme Court.” There was no commentary about the case itself.
President Gerald Ford
Forty-one days after the Supreme Court held argument in Runyon v. McCrary, which considered whether private schools could exclude students on the basis of race, a reporter asked President Ford whether “he would leave . . the private, white academies . . . founded in parts of the South . . . as being perfectly legal.” Ford replies, “That case is now before the Supreme Court. I think that the individual ought to have a right to send his daughter or his son to a private school if he is willing to pay, whatever the cost might be.” That was the extent of Fordi’s comments.
President Jimmy Carter
Four months after arguments in Regents of the University of California v. Bakke, the landmark affirmative action decision that invalidated racial quotas, citing the “separation of powers,“ President Jimmy Carter explained that “I would say that now that it's in the hands of the Supreme Court and we have filed our position, that there's nothing additionally that we would do until after the Supreme Court rules.”
President Ronald Reagan
In Bowsher v. Synar, the Supreme Court would invalidate part of the Balanced Budget and Emergency Deficit Control Act (the “Gramm-Rudman-Hollings Act”) finding that Congress improperly assigned the executive power to the Comptroller General. This was a landmark separation of powers decision. Two months before the case was argued to the Supreme Court, President Reagan mentioned the case in three press conferences, only to stress that “We await a final Supreme Court decision, but nothing the Court says should or will remove our obligation to bring overspending under control.”
President George H.W. Bush
The closest competitor to President Obama is President George H.W. Bush, who commented several times that he favored that Roe v. Wade should be overturned, although he insisted that he would not comment on the merits of a case until after the Supreme Court ruled. In Webster v. Reproductive Health Services, the Supreme Court upheld an Ohio law limiting the use of public employees for performing abortions. On the day the case was argued, at a joint-press conference with former-President Reagan and current-President Bush, a reporter asked “the Supreme Court today will be considering an abortion case. Would you like to see that be the first step in a move to ban abortion in this country?” Bush replied, “Yes.” Reagan answered more diplomatically, “I think we've been agreed on that. You know my position on abortion.”
Six days before the case was decided, a reporter asked President Bush about it: “We may get that decision this week. As I understand your position, you're for a constitutional amendment regardless of which way the Supreme Court rules. Is that right?” The President replied, “Yes, of course.” The reporter pushed back and asked, “Now, if the Supreme Court strikes down Roe v. Wade and sends this back to the States, would it not be less divisive to let the States decide this rather than go through the whole long, tortuous process of constitutional amendment?” President Bush avoided the question: “I hate to not respond to your question. But the Court is probably going to make a decision very soon, and I would prefer to address myself to the question after the Court has decided.”
Three years later, President George H.W. Bush would re-enter the abortion fray leading up to the Court’s landmark decision in Planned Parenthood v. Casey. Fourteen days after the case was argued, the President said he supported the “sanctity of life,” but “the matter is in the courts, and then we'll see what happens. I don't know how broad the Supreme Court decision will be, but at some point it will go back out to the States again.” Two weeks later, and a month before the case was decided, the President repeated that he is committed to the “side of life,” but “that matter is being adjudicated in the courts right now.”
President Bill Clinton
President Clinton weighed in on two significant federalism decisions involving guns. First, United States v. Lopez considered whether Congress had the power to regulate the possession of guns in school zones. Less than three weeks before the case was decided, President Clinton briefly addressed the case in remarks at the National Education Association School Safety Summit, stressing that “administration is supporting that law all the way to the Supreme Court.” There were no substantive comments about the case.
Second, the Supreme Court granted certiorari in Printz v. United States, which involved the constitutionality of the Brady Handgun Violence Prevention Act, on June 17, 1996. Three days later, President Clinton staunchly defended the law: “Now the Supreme Court has agreed to review a case over the constitutionality of requiring local law enforcement officials to help make sure that a person buying a handgun is legally entitled to do so. Well, I just want to make clear I am going to do everything in my power to keep the Brady bill the law of the land. It's keeping people alive. It's a good thing.” President Clinton stressed the real-world implications of the decision: “we dare not walk away from [the law]. It is keeping people alive.” Six month later, on the eve of oral arguments in Printz, a reporter asked President Clinton about the case. He replied, “Well, I believe it's constitutional, and I believe that we have clearly preserved the right to keep and bear arms, consistent with the Constitution in this country. But we have also made America a safer place.”
On December 11, 2000, the day Bush v. Gore was argued, President Clinton was asked if he had “any comment on the Supreme Court today and what they might do?” The President answered concisely: “No, I think we ought to just wait and see what they do. One way or the other, it will be an historic decision that we'll live with forever.”
President George W. Bush
On January 15, 2013, two months before oral arguments in the University of Michigan Affirmative Action cases, President George W. Bush noted that “The Supreme Court will soon hear arguments in a case about admissions policies and student diversity in public universities.” Echoing the position taken by the Solicitor General’s brief--which would be filed the very next day--he explained that the methods used by the school “to achieve this important goal [of diversity] is fundamentally flawed.”
President Bush also made a series of comments after oral arguments in Hamdan v. Rumsfeld, which would invalidate the President’s attempts to use military commissions for detainees held at Guantanamo Bay. One month after arguments, the President explained that “We're at war with an enemy, and we've got to protect ourselves,” but stressed that “we're waiting for our Supreme Court to give us a decision as to whether the people need to have a fair trial in a civilian court or in a military court.” Two months after arguments, and three weeks before the decision would be issued, the President explained that his administration would “file such court claims once the Supreme Court makes its decision as to . . . the proper venue for these trials” for certain detainees. He added, “we're waiting on our Supreme Court to act.” Five days later, the President reiterated that the “best way to handle” certain dangerous detainees is “through our military courts. And that's why we're waiting on the Supreme Court to make a decision.” Finally, on June 21, eight days before the decision, the President explained once again that “there ought to be a way forward in a court of law, and I'm waiting for the Supreme Court of the United States to determine the proper venue in which these people can be tried.”
President Barack Obama
That brings us to President Obama. NFIB v. Sebelius considered the constitutionality of the Affordable Care Act’s individual mandate and Medicaid expansion. The landmark case was argued on March 26, 27, and 28, which stretched Monday through Wednesday. The Justices held their conference on Friday, March 30, to vote on the outcome. The following Monday on April 2, during a press conference, President Obama explained the high stakes of the case. He began by assuring us that he is “confident that the Supreme Court will uphold the law” because “in accordance with precedent out there, it's constitutional.” His initial sentiment is consistent with how Presidents Bush, Clinton, and others addressed questions about submitted cases. But he went further: “I think it's important—because I watched some of the commentary last week—to remind people that this is not an abstract argument.” Putting a face on the argument, so it is not viewed as abstract, the President added, “People's lives are affected by the lack of availability of health care . . . The law that's already in place has already given 2.5 million young people health care that wouldn't otherwise have it.” He stressed that the “Justices should understand that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care.” This comment echoes President Clinton’s comment that the Brady Bill “is keeping people alive.”
He went even further than his predecessors, and said it would be “unprecedented” for the Court to invalidate the law: “Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” The President charged with hypocrisy “conservative commentators that for years” argued that “biggest problem on the bench was judicial activism or a lack of judicial restraint.” The President hoped that “this Court will recognize that and not take that step.”
The very next day, on Tuesday, April 3, the President offered extensive comments in response to a question about whether it “would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress.” He began with what is the normal trope concerning judicial review: “the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it.” Then came the but. “ut it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.” To drive the point home, President Obama invoked the jurisprudential bogeyman of Lochner: “We have not seen a Court overturn a law that was passed by Congress on a[n] economic issue . . . at least since Lochner. Right? So we're going back to the thirties, pre-New Deal.”
Next, the President issued a series of admonitions to the Court. He “expect[s] the Supreme Court actually to recognize that and to abide by well-established precedents out there.” Further, he has “enormous confidence” that “that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.” He added, “So I don't anticipate the Court striking this down. I think they take their responsibilities very seriously.” Towards the end--in a preview of his remarks in 2015--President Obama explained that “As a consequence” of his prediction of the outcome of the case, “we're not spending a whole bunch of time planning for contingencies.” In another foresight of his 2015 comments, the President said that “there is a human element to this that everybody has to remember. This is not an abstract exercise.” These are the most pointed and provocative comments identified in the study.
Fast forward to 2015, and the soon-to-be-decided case of King v. Burwell. This case concerns the validity of an IRS Rule that pays subsidies to consumers in states that failed to establish an exchange under the Affordable Care Act. (Full disclosure: I join an amicus brief supporting the challengers). On June 8--96 days after oral arguments in King v. Burwell, and roughly three weeks before the end of the term--the President offered over 600 words about the pending case. These remarks are longer than any statements identified by Eshbaugh-Soha and Collins.
Mirroring his comments three years earlier, the President said “that under well-established precedent, there is no reason why the existing exchanges should be overturned through a court case.” Once again, then came the but. “Frankly, it probably shouldn’t even have been taken up.” In other words, the President’s faults the Court--or at least 4 Justices--for voting to grant certiorari. He then turned to the real-world consequences of” basing the decision on “a contorted reading of the statute . . . . It means that millions of people who are obtaining insurance currently with subsidies suddenly aren’t getting those subsidies; many of them can’t afford it; they pull out.” Making the point clearly, he said invalidating the IRS Rule is “a bad idea. It’s not something that should be done based on a twisted interpretation of four words” in a 2,000 page statute. Driving the point home after a question of what his “Plan B” is if he loses, the President said, “if somebody does something that doesn't make any sense, then it’s hard to fix.” At this point, the “somebody” could only refer to the Justices voting to invalidate the rule. He concluded that he was “optimistic that the Supreme Court will play it straight when it comes to the interpretation.” Presumably, a ruling invalidating the IRS would not be straight, but crooked.
The very next day the President spoke at length about the Affordable Care Act, in a speech before the Catholic Health Association Conference. Although he did not discuss King v. Burwell directly, he alluded to the pending decision: “It seems so cynical to want to take coverage away from millions of people; to take care away from people who need it the most; to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America. And that kind of cynicism flies in the face of our history.” These comments, though perhaps can be aimed at Congress, are consistent with his previous remarks about the Justices.
After “five years in, what we are talking about it is no longer just a law. It’s no longer just a theory. This isn’t even just about the Affordable Care Act or Obamacare . . . This is now part of the fabric of how we care for one another.” Arguably, his comments suggest that not even the Supreme Court should mess with the ACA, as it is “no longer just a law” but something greater.
Finally, on June 11, the President added one more message to the Justices: “One of the things I try to remind people of — what we do here, what the Supreme Court does, what Congress does — these aren’t just abstractions. These are things that really matter in people’s lives.”
Very few Presidents have spoken about pending Supreme Court cases after arguments were submitted. Even fewer discussed the merits of the cases. Only a handful could be seen as pre-emptively faulting the Justices for ruling against the government. President Obama, however, stands alone in his pointed and directed arguments to the Supreme Court. He has compared the Court invalidating the individual mandate to Lochnerism. He has chastised the Justices for only being able to invalidate the IRS rule based on a “contorted reading of the statute.” To the President, the Court “shouldn’t even have” granted certiorari. Striking down the mandate would have been “unprecedented” and invalidating the IRS Rule would “unravel what’s now been woven into the fabric of America.” While we can debate the propriety of these comments, and ponder whether or not they have an effect on the Court, the 44th President has set a new precedent for ex parte arguments.
Josh Blackman is a constitutional-law professor at the South Texas College of Law in Houston, and the author of Unprecedented: The Constitutional Challenge to Obamacare (2013) and Unraveled: Obamacare, Religious Liberty, and Executive Power (Forthcoming 2016). He blogs at JoshBlackman.com. Prof. Blackman joined an amicus brief in support of the challengers in King v. Burwell.
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