The Supremes and The President: Another OK Corral Shootout?

At the end of this month, the Supreme Court term will end and the Justices will head for the hills. Controversial issues, such as Obamacare, are before the Court and rulings will be given, probably on the very last day of term, giving the Justices a fighting chance to escape from the usual American media hysteria.

So what rulings will be given? Let’s start with the gay marriage debate before the Court. Obergefell v Hodges examines whether same-sex couples have a constitutional right to marry. Put slightly differently, do the States have the right to ban gay marriage and violate a same-sex couple’s constitutional rights?

President Obama supports same-sex marriage, the first chief executive to do so. A while back, he called for a repeal of the Defense of Marriage Act, which banned same-sex marriage. A fine distinction, perhaps, but a gradual move towards his current position. When he became president, he was opposed to same-sex marriage. Recently, Mr Obama ordered federal agencies to recognize same-sex marriages and partnerships like any other married couple. It’s a bit of a flip-flop history.

President Obama’s legacy will not be seriously damaged if the Supremes decide against the gay position but the same cannot be said about the latest challenge to the Affordable Care Act. In King v Burwell, the Court has to decide whether a minor drafting error in the Act will be construed literally. If so, it will prevent the federal government from subsidizing health insurance for low-and middle-income citizens who bought their insurance policies through HealthCare.gov in States that did not set up their own health insurance exchanges. The trouble is that the Act, as written, supports subsidies only for sixteen States which set up such exchanges. Once again, a fine distinction but if the Court decides against the government, millions who have bought policies may find their subsidies removed. Indeed, the Act itself could unravel.

Another issue before the Court is the government’s methods to reduce greenhouse gas emissions. The administration’s position is clear. Only a week ago, the President told a class of U. S. Coastguard cadets that failure to act meaningfully on climate change will set a course for disaster, damaging prospects for future generations. Consequently, the Environmental Protection Agency has cracked down on the mercury emissions from coal and fire powered plants. In retaliation, the plant owners have brought law suits against the EPA, alleging the latter failed to consider the undue costs of its emission reduction policy. Even if the government prevails in the law suits, environment-watchers believe there will many other salvos in the challenge to governmental climate change initiatives.

Immigration is another lawsuit topic where then President faces opposition action. At present, there are no cases before the Supreme Court challenging recent executive orders on immigration, but there are cases going through the lower courts. The issues relate first, to the administration’s plan to shield some five million undocumented immigrants from deportation and, second, the President’s plans to expand this program.

Congress is building up its forces to contest the use of executive orders by Mr. Obama and it seems the Republicans have chosen immigration as the wedge. I find this surprising. The vast percentage of those who are helped by the immigration executive orders are Latinos. In 2016, the Latino community will represent 12% of the votes available to presidential candidates, the same percentage as African-Americans. In 2012, Mitt Romney irritated Latinos by suggesting that illegals should be repatriated. Only a quarter of the Latino vote went his way, one of the prime causes of his defeat. So, will history repeat itself, with a Republican candidate brought down by losing the Latino vote?

All these issues are important items on the President’s second-term agenda. It is a brave man who would forecast which way the Supremes will vote on the law suits before them this term. However, I have little doubt that immigration will reach the Supreme Court soon enough. This will keep the President on his toes. Here, law-decisions will be trumped by politics. The Democrat nominee next year may be handed a present of millions of Latino votes.