Steve Heap/

Obama’s Second-Term Agenda Hits a Roadblock: the Supreme Court

The president’s legacy has mostly survived legal challenges so far, but the shift toward executive action could change that.

The Su­preme Court might not be as kind to Pres­id­ent Obama’s second-term agenda as it was to his first.

The two sig­na­ture ini­ti­at­ives of Obama’s second act—his ex­ec­ut­ive ac­tions on im­mig­ra­tion and new reg­u­la­tions on power plants—are both on hold un­less and un­til the Su­preme Court says they can take ef­fect. And in both cases, the Court has taken rare or un­usu­al steps that signaled skep­ti­cism not only about Obama’s agenda, but also the as­ser­tions of ex­ec­ut­ive power he has used to ad­vance it.

The clearest sig­nal yet came Tues­day even­ing, when the Court said the ad­min­is­tra­tion can­not im­ple­ment Obama’s Clean Power Plan while leg­al chal­lenges to the policy work their way through the courts—a freeze that will likely last in­to the next ad­min­is­tra­tion. Nev­er be­fore, an ad­min­is­tra­tion of­fi­cial said, has the high court blocked a reg­u­la­tion from tak­ing ef­fect be­fore lower courts have ruled on its mer­its.

Sim­il­arly, the Court has nev­er is­sued a straight­for­ward rul­ing that said a pres­id­ent vi­ol­ated his con­sti­tu­tion­al duty to “take Care that the Laws be faith­fully ex­ecuted.” But when the Court agreed to rule on Obama’s im­mig­ra­tion pro­grams, it ad­ded a ques­tion—over the ad­min­is­tra­tion’s ob­jec­tions—about wheth­er those policies vi­ol­ated the “take-care clause.”

The Court hasn’t ruled on the mer­its of either policy yet; the ad­min­is­tra­tion could still win both cases. But its or­ders in the en­ergy and im­mig­ra­tion cases, taken to­geth­er, are dis­cour­aging signs for the Obama ad­min­is­tra­tion.

“These are only hints, but the hints are that a ma­jor­ity of the Court is skep­tic­al,” said Orin Kerr, a law pro­fess­or at George Wash­ing­ton Uni­versity.

Obama’s first-term policy agenda—namely, Obama­care—held up pretty well at the Su­preme Court. But the en­ergy and im­mig­ra­tion cases are dif­fer­ent.

The 2012 law­suit against Obama­care’s in­di­vidu­al man­date was an ar­gu­ment that Con­gress had ex­ceeded its au­thor­ity by passing the man­date. And even when he’s ruled that Con­gress made a mis­take, Chief Justice John Roberts has con­sist­ently been hes­it­ant to con­strain its un­der­ly­ing au­thor­ity.

In his em­brace of ex­ec­ut­ive ac­tions, though, Obama moved in­to ris­ki­er leg­al ter­rit­ory. And the high court’s con­ser­vat­ive ma­jor­ity may be ready to draw the line.

Already, the Court has giv­en Obama’s suc­cessor con­sid­er­able power over his key second-term ini­ti­at­ives. If Obama is able to im­ple­ment his im­mig­ra­tion pro­grams at all, it won’t be un­til the last six months of his ad­min­is­tra­tion—hardly enough time to get them fully in place. And there’s a good chance he won’t be able to see the Clean Power Plan through at all.

The Court’s 5-4 de­cision to tem­por­ar­ily block the Clean Power Plan was es­pe­cially sur­pris­ing to leg­al ob­serv­ers. It was the first time that the high court has agreed to block a reg­u­la­tion from tak­ing ef­fect be­fore a lower court has ruled on its mer­its—and the lower court in this case has already agreed to speed up the pro­ceed­ings.

Or­al ar­gu­ments in that court are sched­uled for June 2. But even if it up­holds Obama’s plan, the reg­u­la­tions still can’t take ef­fect right away: The stay is­sued Tues­day lasts un­til the Su­preme Court either rules on the mer­its of the plan or de­cides not to hear the is­sue.

The Clean Power Plan, un­like Obama’s im­mig­ra­tion ac­tions, was the product of form­al reg­u­la­tions and a no­tice-and-com­ment peri­od for the pub­lic. It’s not easy for a new ad­min­is­tra­tion to re­verse its pre­de­cessors’ reg­u­la­tions, mean­ing the Clean Power Plan could have been hard for a Re­pub­lic­an pres­id­ent to fully un­wind. But if the pro­gram is still on ice when the next pres­id­ent takes of­fice, a GOP ad­min­is­tra­tion could de­cide not to de­fend the policy in court.

(Image via Steve Heap/