2) Climate change
President Obama is reportedly on his way to tackling climate change with an order the Environmental Protection Agency will issue to regulate the carbon dioxide spewing out of the nation’s power plants. The new carbon rules will surely be challenged in court, and as Jonathan Chait points out in New York, the legal fight will take place in the D.C. Circuit. That court is already hearing challenges to EPA rules “requiring states to address greenhouse emissions in their permitting requirements, emissions standards for hazardous pollutants resulting from lead processing, and even a pair of cases regarding the importation of polar bear hunting trophies,” Lazarus and Doug Kendall write in Grist. Happily for the president, the Supreme Court said in 2007 that the Clean Air Act (a gift from President Richard Nixon) gives the EPA the power to set standards for pollutants linked to climate change. But that doesn’t mean the new case would necessarily have an easy ride.
When the Dream Act didn’t pass, Obama’s Department of Homeland Security stepped in with an order to stop deportations and grant work permits for some immigrant students raised in the United States—as many as 800,000. The idea is that the government can exercise its discretion to “defer action” on immigrants who arrived as children. Kris Kobach, Kansas secretary of state and a primary drafter of state laws that crack down on immigrants, filed a suit in federal court in Texas in October challenging the DHS decision on behalf of several federal agents who work on immigration enforcement, as well as Mississippi Gov. Phil Bryant. The plaintiffs say they’re being told to break federal law. They’re also challenging the Obama administration’s decisions not to deport other immigrants it has deemed to be low priority. The Supreme Court hasn’t been hospitable to this kind of claim: Last year, in striking down parts of Arizona’s immigration law (which Kobach helped write), the court talked about “the broad discretion” of federal immigration officials as a “principal feature of the removal system.” And Judge Reed O’Connor (a George W. Bush appointee) dismissed many of the claims in the suit. But last month, O’Connor said that one part of Kobach’s suit is likely to succeed, because DHS refuses to try to deport people when that’s what the law requires. The judge asked to hear more from both sides. Whatever happens in this case, it’s a precursor to the legal challenge that will surely follow the passage of any immigration bill in Congress.
“Could Dodd-Frank Be Unconstitutional?” That’s the headline on a Wonkblog post from February about a lawsuit over the act Congress passed, and Obama signed, to rein in the excesses of the financial industry after the recession. Eleven states and three groups (including the Competitive Enterprise Institute!) have signed on to the suit, which claims that the Dodd-Frank Act violates the Constitution’s separation of powers and gives “unbounded power” to the Consumer Financial Protection Bureau (the agency that Republican senators won’t confirm Obama’s choice to head because they object to its existence). The suit also objects to the government’s authority to force failing companies to liquidate, saying the law doesn’t provide for enough advance warning. This suit was also filed in D.C. Maybe it will go nowhere—or maybe that depends which judges it lands in front of.
5) Recess appointments
This one demonstrates the damage the D.C. Circuit has already done to the president. Earlier this year, three of the court’s judges blocked Obama’s appointments from Jan. 4, 2012, to the National Labor Relations Board as well as the head of the Consumer Financial Protection Bureau. (Yes, see above.) On that day in January, the Senate was not in session, according to Obama, which meant he could exercise his constitutional authority to make recess appointments. The Senate was in fact on a 20-day holiday, but the Republican minority made sure to gavel the Senate in and out during that time. Obama dismissed these as “pro forma” sessions. The D.C. Circuit disagreed. Never mind that these sorts of midsession recess appointments have been a regular feature of Washington since World War II and common since the Reagan administration. Or that three other appeals courts have approved them. The D.C. Circuit ruling threw into doubt a year’s worth of NLRB rulings, as well as the leadership of the CFPB. National Labor Relations Relations Board v. Noel Canning, as the case is called, is now probably on its way to the Supreme Court. All 45 Republican senators have asked the justices to hear it and put a stop to the president’s “ongoing defiance.”
At least, from the president’s view, the D.C. Circuit likely won’t have the last word. But Canning should remind him why appointing judges to the lower courts matters: As is, dominated by the picks of past Republican presidents, they can erase Obama’s legacy before it even begins.