http://thehill.com/regulation/court-battles/226192-5-ways-supreme-court-could-thwart-obamaBy Ben Kamisar - 12/07/14 02:00 PM EST
The Supreme Court could have an outsized impact on President Obama’s agenda next year.
The court has been a mixed bag for Obama during his presidency. He’s had big wins, including rulings affirming the Affordable Care Act and striking down the Defense of Marriage Act. But there have been losses too, including a challenge to ObamaCare’s contraceptive mandate and the elimination of part of the Voting Rights Act.
With challenges on issues including ObamaCare, EPA regulations and potentially gay marriage, here are five ways that the Supreme Court could impact Obama’s agenda in the twilight of his presidency.
1) Gay marriage
The Supreme Court passed on a slew of gay marriage cases this fall, but that was before the 6th Circuit became the first federal appeals court to back a gay-marriage ban. With the circuit split, most court-watchers think the justices will take up a gay-marriage case to resolve the issue.
Without a specific case on the docket, though, its hard to predict how the justices could act. The Obama administration would clearly support a decision affirming a national right to gay-marriage. But a conservative-leaning court could cite federalism and ultimately leave the decision up to individual states. That could significantly roll back the number of states that allow gay marriage, as many granted same-sex marriage licenses only after courts struck down bans.
2) ObamaCare
Hobby Lobby was the big case of 2014, but another challenge could have even bigger implications for the president’s signature healthcare plan: King v. Burwell.
The case challenges the Internal Revenue Service’s reading of the Affordable Care Act. The text of the law says that people can receive subsidies if they enroll in an “Exchange established by the State.” But not all states decided to set up exchanges. Twenty-seven states rely on federally-facilitated exchanges, while ten others are supported in part by the federal government, according to the Kaiser Family Foundation.
The government interprets the law to allow all of those enrolled in exchanges to receive tax credits if they qualify. In a court brief, the administration calls the tax credits “essential.” Slashing them would “render the Act unrecognizable to the Congress that passed it” and antithetical to the law’s goals.
But the plaintiffs in the case and other opponents of ObamaCare want the IRS to take that phrase literally and only offer subsidies to those in state-created exchanges. A group of Republican lawmakers argue in a brief that the IRS’s reading unconstitutionally expands the scope of the law and takes power out of the hands of legislators who drafted the language.
A ruling against the Obama administration might not derail the entire law, but it could throw a wrench into its goal of reducing healthcare costs by raising premiums for about four million people.
3) Power plant regulations
The Supreme Court will hear another challenge to Environmental Protection Agency regulations early next year, this time on a 2012 rule that would require power plants to reduce emissions of mercury and other toxins.
Justices will decide whether the EPA “unreasonably refused to consider costs” while making its rules, which green groups see as significant accomplishments for the administration.
The plaintiffs claim the regulations are beyond the agency’s purview under the Clean Air Act and that the costs of complying with the rules outweigh the benefits.
The justices are consolidating three separate challenges, Michigan v. EPA, Utility Air Regulatory Group v. EPA, and National Mining Association v. EPA.
The Obama administration went to the mat over EPA rules last year, with largely positive results. And this challenge won’t likely be the administration’s last fight over climate rules. But by taking the case, the Supreme Court could potentially force the agency to reevaluate its regulations, and potentially inspire future challenges to EPA rules.
4) NSA data
The National Security Agency has been another flash point for the administration since leaker Edward Snowden shed light on the country’s vast surveillance apparatus. One of the most controversial programs is the agency’s bulk collection of data on Americans’ phone calls, referred to as “metadata.”
Metadata doesn’t include the content of a call, but does capture relevant information including the participants, the duration and the time. After the program was uncovered, Obama added some legal safeguards, but Congress has yet to agree on broader structural reforms.
Intelligence officials have argued that metadata is vital to preventing attacks and that agencies rarely intrude on the data of innocent Americans. But privacy activists agree with D.C. District Court Judge Richard Leon, who called the government’s tactics “almost Orwellian” when he ruled against the collection program. His ruling only affected the specific plaintiffs, but was delayed to allow the government an appeal.
D.C. circuit judges heard that appeal last month. A decision and subsequent appeal to the Supreme Court likely won’t happen in time for the justices to rule before their June recess. But if the case reaches the high court, it could be a watershed moment for post-9/11 surveillance programs.
5) U.S.-Israeli relations
Menachem Zivotofsky is a Jerusalem-born American, but his passport lists that city as his birthplace instead of Israel. That’s because Congress and presidents have fought over whether to recognize Israel’s claim to Jerusalem as its capital. But the 12-year-old and his family are now suing for the right to list Israel as his country of birth in Zivotofsky v. Kerry.
A “unified Jerusalem” under Israel’s control is an integral part of Israeli policy, but many Palestinians want Jerusalem to be the capital of their own state.
Congress is on Israel’s side — it has voted over the years to recognize Jerusalem as the country’s true capital, to move the American embassy to the city in a show of support, and to make passports recognize Jerusalem as being in Israel.
But presidents wanting to remain neutral in the fight over a holy city to Christians, Jews and Muslims have blocked those laws.
For an administration looking to tamp down Middle East tensions, the lawsuit could put it in a tough position.
The Supreme Court could deal a blow to American-Israeli relations if justices decide to back the administration. But a ruling siding with Zivotofsky could be damaging for the administration’s fragile relationships in the Arab world.
