FDR Already Tried and Lost - Now It's Supreme Court 3 -- Obama 0

FIRST -- The US Supreme Court last Thursday limited a President's power to make temporary high-level administration appointments, ruling in favor of Senate Republicans in their argument with President Obama. It was the Court's first case concerning the Constitution's recess appointments clause, and it was a unanimous 9-0 decision that struck down Obama's appointments to the National Labor Relations Board in 2012 without Senate confirmation. The Court ruled they were illegal because the appointments were made when the Congress itself had declared that it was in session. NEXT -- The Supreme Court ruled on Monday that two companies - Hobby Lobby Stores Inc., a nationwide chain of 600 craft stores with15,000 full-time employees based in Oklahoma City, and Conestoga Wood Specialties Corp., an eastern Pennsylvania company owned by a Mennonite family - can refuse, on the basis of their religious beliefs, to cover some contraceptives for their workers. It was a 5-4 decision against President Obama's position. The two companies sued the Obama administration over a requirement under the Affordable Care Act (Obamacare) that company health plans cover all US-approved contraceptive drugs and devices without requiring cost-sharing by workers. While both companies’ employee health plans cover most contraceptives, they exclude two drugs that the companies’ owners believe cause abortions and some intra-uterine devices. Justice Samuel Alito, in the majority opinion, wrote that the government’s requirements to cover birth control violate a 1993 law, the Religious Freedom Restoration Act. The Court ruled that the law applies to corporations a s well as individual citizens. “This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs,” wrote Alito. “Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.” THEN -- In anorher Supreme Court 5-4 decision, the Court ruled that public-sector unions in Illinois cannot collect fees from home health care workers who don't want to be part of a union. The ruling is a esetback for labor unions that have boosted their bargaining power - as well as their bank balance - in states like Illinois, by signing up thousands of in-home care workers and forcing them to pay union dues. The ruling was limited to health care workers and not all private-sector unions. It also stopped short of overturning the practice that allows public-sector unions to pass representation costs to non-members. Justice Alito said health care workers "are different from full-fledged public employees" because they work primarily for their disabled or elderly customers and do not have most of the rights and benefits of state employees. A White House spokesman said that the President - who sent aides to Wisconson to battle GOP Governor Scott Walker's successful effort to rein in public sector unions - supports the union position and will work with them to limit its impact. ~~~~~ President Obama's fight with Congress and his losing battle with the Supreme Court are reminiscent of President Roosevelt, who enacted wide-ranging legislation with a heavily Democrat Congress for his New Deal program, starting in 1933. By 1937, Roosevelt had won a second term, but a conservative Supreme Court hadn’t changed since he took office in 1933. Four Justices were conservative enough that their votes against most New Deal plans were expected. A fifth justice with conservative leanings was Chief Justice Charles Evans Hughes, who had narrowly lost the 1916 presidential race to the Democratic incumbent, President Woodrow Wilson. Hughes had roots in the progressive wing of the Republican party. Another justice, Owen Roberts, was a Hoover appointee who voted with the conservatives on some decisions. The tension between the President and the Supreme Court grew as a series of decisions by the Justices halted some key components of the New Deal. After his re-election, Roosevelt developed a plan in secrecy, working with his attorney general, Homer Cummings, to ensure the Supreme Court would rule favorably about upcoming cases on Social Security and the National Labor Relations Act. FDR asked Congress to pass a law allowing the President to appoint an additional Supreme Court Justice for every sitting Justice over 70 years of age. This would mean that Roosevelt could add six of his own Justices to the Court. With two liberals already on the bench, that would put the odds in FDR’s favor. The idea may seem outlandish today, but President Roosevelt must have felt the Judicial Procedures Reform Bill of 1937 had a good chance in a Democratic Congress. FDR used one of his fireside chats in March 1937 to make his case to the American people : “This plan of mine is not about attacking the Court; it seeks to restore the Court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution‘s framework a system of living law.’ The Court itself can best undo what the Court has done,” Roosevelt said. But, many Americans believed the Supreme Court was sacred, and opposition to the plan steadily grew inside Washington. Some thought the proposed law wouldn't even make it out of committee for a vote on the Senate floor. On March 10, Cummings testified before the Senate : “We want an independent judiciary, but we want a judiciary that will permit the country to move,” Cumming said. However, a week later, Senator Burton Wheeler read a letter from Chief Justice Hughes to the committee, which explained the need for an independent Supreme Court and debunked much of the FDR bill. Harold Ickes, a key FDR adviser, wrote in his diary : “This letter, without expressing itself as to the policy of the President’s plan, sought to prove in great detail that the Court did not need any extra help to handle its work since it kept right up with its docket. It then went on to give Congress the opinion that more judges would make for inefficiency and delay. It was good tactics.” So within five weeks of FDR’s announcing the court-packing plan, it was headed toward a dead end in the Senate. By June 1937, the Judiciary Committee had sent a report with a negative recommendation to the full Senate : “The bill is an invasion of judicial power such as has never before been attempted in this country….It is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the government....It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America." The opposition to the bill was much greater than Roosevelt and his advisors had imagined. It was not surprising that the court-packing controversy had aroused the rage of the right, which already detested Roosevelt and the New Deal and believed the White House was building a dictatorship. More startling to the President was the outrage from within his own party - even among many staunch progressives - and the lukewarm loyalty he received even from those who agreed to support him. Many opponents shared Roosevelt’s dismay at the Court’s conservatism, but tampering with the institution seemed even to many liberals to represent excessive presidential power and a threat to the Constitution. All that said, the Justices were as sharply divided in the 1930s as they often seem to be in the 21st century. Five were largely opposed to the New Deal. Four mostly supported the New Deal. But very few Americans were ready to let Roosevelt tamper with the Constitution. It was FDR's most humiliating defeat. ~~~~~ Dear readers, it is clear that President Obama will not try to pack the Supreme Court. He has long since announced his strategy - his pen and phone and executive orders. And Justice Alito precipitated a confirmation of this. In his majority opinion on contraceptives, the Justice suggested using a third party - usually an insurer - to cover contraceptives at no charge to the affected employees, and let the government absorb the cost. But, White House spokesman Josh Earnest said the President may not take that route. Instead, he will challenge Congress to pass legislation to address the coverage gap for women. Thus, the Obama strategy is very clear - executive orders when they jab at the Republican House and Speaker Boehner, but demands for House laws when it will embarrass GOP members and the Speaker. If Obama wanted good government, instead of game playing, he would accept that the majority of Americans oppose him. His fight on issues is with America. House members are doing their job by representing the America that elected them. President Obama should do the same.