The Supreme Court ruled 9–0 in January that punishing a church for failing to retain an unwanted teacher “interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” Such interference, it concluded, violates the First Amendment’s Free Exercise and Establishment Clauses.
In United States v. Jones, also decided in January, the government claimed the power to attach a GPS device to a suspected drug dealer’s car and electronically monitor his movements, all without a warrant. This claim drew opposition not just from the ACLU and the Cato Institute, but from the conservative Rutherford Institute, the liberal Constitution Project and organizations ranging from the Gun Owners of America to the Council on American‐Islamic Relations.
While the justices had differing opinions on why this action violated the Fourth Amendment—was it a physical trespass, a violation of privacy expectations, or something else?—all agreed it was unconstitutional. Nevertheless, last week the Justice Department was back in a lower court, using technicalities in Jonesto claim again (United States v. Pineda‐Moreno) that it could attach GPS devices without seeking warrants.
Third, in Sackett v. Environmental Protection Agency, the government denied the right of property owners to judicial review of an EPA order to stop building a house it claimed was in violation of the Clean Water Act. In March the court unanimously rejected that position. Justice Antonin Scalia, who wrote the opinion, called access to courts the least the government could provide in response to “the strong‐arming of regulated parties” by government agencies. “In a nation that values due process, not to mention private property,” wrote Justice Samuel Alito in a concurring opinion, the government’s “treatment [of the homeowners] is unthinkable.”
Later in March, the administration claimed in the ObamaCare case that the government could require people to buy something as a means of regulating a broader national market. And a month later in Arizona v. United States, the government said that a federal policy decision regarding immigration enforcement priorities could by itself trump state law—a position that seemed to trouble even Justice Sonia Sotomayor, one of the president’s own nominees.
More recently, the Justice Department has been suing states over voter‐ID laws. Attorney General Eric Holder makes speeches claiming these laws herald the return of Jim Crow. Never mind that the Supreme Court has found them to satisfy the Voting Rights Act and the Constitution, most recently by 6–3 in Crawford v. Marion County Election Board (2008), where plaintiffs claimed that needing a photo‐ID placed an undue burden on their right to vote.
The government’s arguments across a wide variety of cases would essentially allow Congress and the executive branch to do whatever they wanted without meaningful constitutional restraint. This view is at odds with another unanimous Supreme Court decision, Bond v. United States (2011). Bond vindicated a criminal defendant’s right to challenge the use of federal power to prosecute her. As Justice Kennedy wrote, “[F]ederalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”
If the government loses in the health‐care or immigration cases, it won’t be because its lawyers had a bad day in court or because the justices ruled based on their political preferences. It will be because the Obama administration continues to make legal arguments that don’t pass the smell test.