Judicial Energy and the Supreme Court - The New York Times
by Linda Greenhouse
Terry Eastland, a Reagan-era conservative activist who now edits The Weekly Standard, wrote a book back in 1992 that he called “Energy in the Executive: The Case for the Strong Presidency.” He took to task both President Ronald Reagan, for whom he had worked in the Justice Department, and the first President Bush for having failed to use all possible levers of presidential power to advance the conservative agenda.
“The mere possibility of negative reaction from Congress or elsewhere should not deter the energetic executive from administrative governance,” Mr. Eastland wrote. “The president is elected to govern, and mere maintenance of the status quo is not to be confused with energetic government.” The book’s purpose, he explained, was “to recover and restate the enduring case for energy in the executive, which is to say: the strong presidency.”
What a difference it makes when Barack Obama is in the White House.
I reached for Mr. Eastland’s book on Monday night, even before I finished reading the decision from the United States Court of Appeals for the Fifth Circuit that refused to lift a nationwide injunction against the Obama administration’s effort to shield millions of undocumented-immigrant parents of American-citizen children from deportation.
The 2-to-1 decision in State of Texas v. United States held that the Deferred Action for Parents of Americans program would likely be found after a trial to have exceeded the president’s authority under the Immigration and Nationality Act. The program could not be allowed to take effect in the meantime, the majority said, because it would subject Texas and the 25 other states that sued to block it to “a substantial threat of irreparable injury.”
I wonder whether Mr. Eastland, who these days criticizes President Obama’s “unilateral governance” and “Congress-circumventing actions,” is planning a new book praising “energy in the judiciary.” Someone on his side of the street certainly should write one. The majority opinion is as cynical an exercise of judicial authority as I can remember — and no, I haven’t forgotten Bush v. Gore. The dissenting judge, Carolyn Dineen King, nailed it when she said the case “essentially boils down to a policy dispute” and that “the policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process.” Chief Justice John G. Roberts Jr. could hardly have said it better himself. In fact, he did say essentially the same thing, in his dissenting opinion last June in the same-sex marriage case.