Shawn Mitchell
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It could happen--Barack Obama and John Roberts in an epic clash. For institutional, ideological, and personal reasons, the two charismatic heavyweights may be on a collision course.

Obama is a fierce competitor who climbed the ranks from local Chicago pol to president in just 6 years. He envisions a different American society--more liberal and redistributive, with a government powerful enough to make it happen. His ambitious Second Inaugural prompted even the New York Times to fit into print “Obama offers liberal vision.”

From preserving every inch of turf held by our overdrawn entitlement society, to game-changing action on guns, global warming, gay advancement, and steeper redistribution, the Man from Hyde Park has big plans.

The obstacle the First Organizer faces is that different-minded Republicans occupy a quaint, populist outpost called “The House of Representatives.” 

The big changes needed to realize Hope and Change won’t pass the House. After Harry Reid’s recent failure to fillet the filibuster, they have poor prospects in the Senate, as well. But the president declared our challenges require that we act today and he intends to.

Of course, the dusty old Constitution says Congress gets to pass the laws while the Executive bats clean up and enforces them. But Justice Ruth Bader Ginsburg says our Constitution isn’t a great model. It’s really old and doesn’t fully embrace human rights—at least not like the South African or Canadian constitutions or the European Declaration of Human Rights do.  Obama appears to agree.

If the president posted on Facebook his relationship status with the Constitution, he’d have to choose: “It’s complicated.” The warmest thing he’s said about the Founders’ original formula is that it wisely allowed for change as Americans grew more enlightened.     

He’s famously on record talking up the Warren Court as pretty moderate after all, because, for all its constitutional adventurism, it didn’t break free of the basic structure and limits on federal power the founders built into the Constitution, at least as currently interpreted.

It’s hard to miss the First Organizer’s yearning for broader interpretations. He aims to blaze a new constitutional path, with a much larger role for Washington in steering national life, and fewer constraints on the president’s hand on the wheel.

A divided, stalemated Congress won’t put up much resistance to executive expansion. A primary check will come, if at all, from the judiciary, where John Roberts presides. A Bush Appointee and veteran of the Reagan and Bush White Houses, Roberts holds more traditional views on Constitutional matters.

An anecdote reported around the time of Roberts’ confirmation hearing to the high court  illustrates his orientation. As a young staffer in Reagan’s DOJ, Roberts was assigned to analyze a demand from a liberal House member who criticized the president for being “out of touch.” The Representative demanded negotiations with the administration in order to form a “power sharing” arrangement between Congress and the executive. Roberts wrote in a legal memo that it so happens the Framers had addressed that very subject. The congressperson might be interested to check out the drafters’ “committee report” found in Articles I and II of Constitution about the sharing of powers between the executive and legislative branches. 

Conservatives disillusioned by Roberts’ opinion on Obamacare are braced for the worst in future showdowns. But they might have things wrong.

No one knows exactly how to read Supreme tea leaves, but one school of thought is Roberts feels the burden of preserving the court’s reputation and stature. He stared at liberalisms’ holy grail of social programs, “universal” health care, and the fiercely arrayed forces of national media--from satellite to bloggers in basements--and rather than enter into permanent Armageddon with the information army, he blinked

But finessing a specific program passed by two branches in a field already half occupied by government dollars is not the same as stepping aside for willful executive overreach. If Roberts is minding the court’s legacy, he doesn’t want to be remembered the Chief who played FDR’s Charles Evan Hughes to Barack Obama, and approved a redesign of the federal role in American life.

Obama clearly will test any restraints on his vision. His DOJ under Eric Holder is not timid about pushing aggressive cases. Already Obama has lost a unanimous First Amendment decision, where the administration tried to police a church’s decision about hiring clergy as well as another unanimous slap down of the EPA arbitrarily abusing homeowners.

Following the Gulf oil well disaster, the administration effectively defied judicial oversight of an unsupported and arbitrary ban on all drilling, returning repeatedly with slight modifications of the ban and forcing the courts to play whack-a-mole with a lawless Department of Energy.

The DC Court of Appeals recently rejected Obama’s unprecedented attempt to declare the senate in recess and force through unconfirmed appointments to the NLRB and other federal offices. That case is headed for the high court.

As the branches seemed poised for increased tension, there’s some personal history between the two men. Obama was one of the few senators to vote against Roberts.

At a State of the Union address, Obama famously derided and criticized his robed hostages for their decision in the Citizens United case. A few weeks later, Roberts said in a public speech that political attacks on the court raise the question if justices really belong at the SOTU.

Then there was healthcare, and Obama’s aggressive statements to influence the court. He won that  round. Roberts found a way to see it the president’s way.

Was it judicial subordination and an omen? Or was Roberts playing a strategic game to build capital for even bigger fights.

A lot depends on the answer.

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Shawn Mitchell

Shawn Mitchell was elected to Senate District 23 in the Colorado General Assembly in November of 2004. Shawn is an attorney at private practice in Denver and Adams County.
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