Did you know the Obama administration’s position has been defeated in at least 13 – thirteen — cases before the Supreme Court since January 2012 that were unanimous decisions? It continued its abysmal record before the Supreme Court today with the announcement of two unanimous opinions against arguments the administration had supported. First, the Court rejected the administration’s power grab on recess appointments by making clear it could not decide when the Senate was in recess. Then it unanimously tossed out a law establishing abortion-clinic “buffer zones” against pro-life protests that the Obama administration argued on behalf of before the Court (though the case was led by Massachusetts attorney general Martha Coakley).
The tenure of both President Obama and Attorney General Eric Holder has been marked by a dangerous push to legitimize a vast expansion of the power of the federal government that endangers the liberty and freedom of Americans. They have taken such extreme position on key issues that the Court has uncharacteristically slapped them down time and time again. Historically, the Justice Department has won about 70 percent of its cases before the high court. But in each of the last three terms, the Court has ruled against the administration a majority of the time.
So even the liberal justices on the Court, including the two justices appointed by President Barack Obama — Elena Kagan and Sonia Sotomayor — have disagreed with the DOJ’s positions. As George Mason University law professor Ilya Somin told the Washington Times last year, “When the administration loses significant cases in unanimous decisions and cannot even hold the votes of its own appointees . . . it is an indication that they adopted such an extreme position on the scope of federal power that even generally sympathetic judges could not even support it.”
Those decisions are very revealing about the views of President Obama and Eric Holder: Their vision is one of unchecked federal power on immigration and environmental issues, on presidential prerogatives, and the taking of private property by the government; hostility to First Amendment freedoms that don’t meet the politically correct norms; and disregard of Fourth Amendment protections against warrantless government intrusion. These are positions that should alarm all Americans regardless of their political views, political-party affiliations, or background.
While yesterday’s Supreme Court decision unanimously rejecting the administration’s argument that a search warrant wasn’t required for the government to look at cell-phone records and data got a lot of attention, it’s not the first time the Obama administration has taken an anti–civil liberties stance. In last year’s case of U.S. v. Jones, the Justice Department essentially tried to convince the Supreme Court that the Fourth Amendment’s protections against search and seizure should not prevent the government from tracking any American at any time without any reason.
Justice argued that the police should be able to attach a GPS device to your car without a search warrant or even any reason to believe you committed a crime. Fortunately for those who fear the ever-growing power of the federal government, particularly its abuse of new technology, all nine justices agreed that the Fourth Amendment prevents the government from attaching a GPS to your car without getting a warrant.
Even Justice Sotomayor, President Obama’s own nominee to the Court, agreed that the government had invaded “privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection.” But Eric Holder wanted to ignore the Bill of Rights and believed that his agents should be able to track all of your movements in public by attaching a GPS device to your car without permission from a judge. This is a frightening view of government power enhanced by new surveillance technology that would have directly threatened our liberty. When will liberals wake up to the fact that this administration takes positions on executive power that would make Richard Nixon and John Mitchell, his attorney general, blush?
— John Fund is co-author, with Hans von Spakovsky, of a new book Obama’s Enforcer: Eric Holder’s Justice Department.