Supreme Court shutouts reveal reckless decisions: Column

Ilya Somin

Those of us who follow Supreme Court decisions spend most of our time debating the contentious issues that divide justices 5-4 along predictable ideological lines. Often, that's where the loudest public debates are as well. Just consider the recent rulings on gay marriage.

But we might do well to pay more attention where the court rules unanimously, particularly when they go against the White House.

When a president pursues policies that require such expansive federal power that he can't get a single justice to agree, something is probably amiss.

Such overreach, though, has become a part of our political culture. Administrations of both parties are often unwilling to accept constitutional limits on their authority.

Obama's losses

In Horne v. Department of Agriculture, a decision issued in June, the justices unanimously rejected the Obama administration's argument that raisin farmers did not have the right to go to court to contest the seizure of hundreds of thousands of dollars worth of raisins. The Fifth Amendment states that the government must pay "just compensation" whenever the government takes private property for "public use." But the administration claimed that farmers could not even raise the takings issue in court without first enduring lengthy delays and paying a $483,000 fine.

Horne was the administration's third unanimous defeat in a property rights case in 18 months. In Sackett v. Environmental Protection Agency, it claimed that a couple had no right to go to court to seek compensation after the EPA blocked construction of their "dream house."

In Arkansas Game & Fish Commission v. United States, it unsuccessfully argued that the Fifth Amendment doesn't require compensation when the federal government repeatedly and deliberately floods property owners' land. Even liberal justices normally skeptical of property rights claims, including one of President Obama's appointees, found these arguments too much to swallow.

The Obama administration has also suffered unanimous defeats in several other important cases.

Last year, the justices rejected the administration's position that the religious freedom guaranteed by the First Amendment does not apply to churches' decisons to hire and fire employees with religious duties, such as teaching theology. Obama appointee Justice Elena Kagan called the administration's position "amazing."

In United States v. Jones, another 2012 case, the justices unanimously rejected the administration's claim that the Fourth Amendment does not restrict the government's authority to attach a GPS tracking device to a car.

War on terror

Obama isn't the first president to promote dubious theories of federal power. George W. Bush's administration, among others, did so as well.

All but one Supreme Court justice rejected its claims of nearly unlimited authority to detain U.S. citizens determined to be "combatants" in the war on terror.

Bush and Obama exemplify a political culture where presidents routinely push the limits of federal power with little regard for constitutional restrictions. Too often, executives act as if their role is not to protect constitutional rights but rather to see how far they can bend them before courts step in.

It is understandable that presidents chafe at constitutional constraints on their power. Such restrictions sometimes impede cherished policy goals, from regulating land use to fighting terrorists. Voters rarely punish this kind of overreaching, and journalists often seem to regard it as a normal part of the political process.

Our responsibility

But constitutional restrictions on federal authority exist for good reason: They protect our lives, liberty and property against overwhelming government power. When presidents routinely claim sweeping powers that every Supreme Court justice rejects, something is wrong.

The fault lies not only with the offending politicians, but also with the voters and political elites who too often excuse or ignore their unconstitutional actions.

Sometimes, the courts can protect us against overreaching administrations. But many abuses of power cannot or will not be litigated. If we want to enforce constitutional limits on government, we cannot rely on judges to do the job alone.

Ilya Somin is a law professor at George Mason University and author of the forthcoming Democracy and Political Ignorance.

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