President Obama leaves behind a mixed legacy on constitutional issues — one that is likely to remain controversial for a long time to come. Its most dangerous element may be the precedents he set for unilateral presidential initiation of war. More positively, the President played an important role in the establishment of a constitutional right to same-sex marriage, and his Administration’s policies unintentionally led to litigation that resulted in stronger judicial protection for federalism, property rights, and religious liberties. Obama’s judicial appointments are notable for their impressive professional qualifications and strong support for liberal judicial ideology. The long-term constitutional impact of the Obama presidency remains to be seen.
Contrary to assurances and in violation of federal law, the Obama administration shielded lawmakers from an effective pay cut of up to $12,000 each by granting Congress several types of special treatment unavailable to the public. It deemed Congress eligible to participate in D.C.’s small-business exchange, though both federal and D.C. law prohibit it. That form of special treatment gave rise to another: It made Congress the only large employer in the country that can make tax-free contributions toward its employees’ exchange-plan premiums. The act of issuing those payments conflicts with other federal laws, and bestows yet another form of special treatment on Congress: Members of Congress and their staff are the only group of federal workers who receive FEHBP premium contributions for non-FEHBP coverage.
As rightly determined by federal district judge Rosemary Collyer back in May of 2016 in a strong 38-page opinion, the payments by President Obama (and President Trump) were and are illegal. Insurers receiving them have effectively been receiving stolen funds. The Constitution prohibits drawing any money from the Treasury except “in Consequence of Appropriations made by Law.” Congress has enacted various statutes making it a crime to pay money from the United States Treasury for which no appropriation exists. It’s real simple. Congress never appropriated any money for this program. And the efforts to twist other appropriations into CSR appropriations are, as even some ACA supporters have the courage to admit, pretty lame. This is why Judge Collyer actually enjoined the payments from being made, although she had enough modesty to hold off activating the injunction until there was time to resolve an appeal. That appeal has been pending, now, for more than a year, without any action being taken.
The Supreme Court, the Media, and Public Opinion: Comparing Experimental and Observational Methods by Katerina Linos, Kimberly Twist :: SSRNFebruary 5, 2017
Can Supreme Court rulings change Americans’ policy views? Prior experimental and observational studies come to conflicting conclusions because of methodological limitations. We argue that existing studies overlook the media’s critical role in communicating Court decisions and theorize that major decisions change Americans’ opinions most when the media offer one-sided coverage supportive of the Court majority. We fielded nationally representative surveys shortly before and after two major Supreme Court decisions on health care and immigration and connected our public opinion data with six major television networks’ coverage of each decision. We find that Court decisions can influence national opinion and increase support for policies the Court upholds as constitutional. These effects were largest among people who received one-sided information. To address selection concerns, we combined this observational study with an experiment and find that people who first heard about the Court decisions through the media and through the experiment responded in similar ways.
Twice in the Hobby Lobby case Gorsuch ruled against the Obama administration’s efforts to force the Green family to violate its conscience.
The Roberts Court saw a number of important advances for judicial enforcement of federalism-based limits on congressional power, both in high-profile cases such as NFIB v. Sebelius, and lesser known ones. The extent of these gains is greater than many observers recognize. Much of this progress fits the conventional model of federalism as a left-right ideological issue on the Court, dividing liberal Democrats from conservative Republicans. But some noteworthy developments depart from this framework, and suggest a greater degree of openness to federalism among the liberal justices, and perhaps others on the left.
When it comes to the ACA, the first major question facing an incoming President Trump will be whether to terminate cost-sharing payments to health plans. Already, prominent voices are calling on him to immediately cut off payments. What effect would that have? And what are his options?