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Saturday, March 10, 2012

Preemptive President or Preemptive Opinion?

Gerard N. Magliocca

To follow on Mark and Jack's posts, I want to make two observations. The first is that there is a simple diagnostic that indicates whether a president is reconstructive or preemptive under Skowronek's theory. The party of the reconstructive president always wins a third term (Jefferson/Madison, Jackson/Van Buren, Lincoln/Grant, FDR/FDR, Reagan/Bush). Preemptive ones do not have the clout to pull this off, though in two instances they got close (Eisenhower/Nixon, Clinton/Gore). So if Obama is reelected and then followed by Joe Biden or Hillary, for example, he was a reconstructive president. Tune in 4 years from now.

The other issue raised by Jack's video is whether the Supreme Court will start issuing what I've called "preemptive opinions" that directly challenge the Obama Administration's constitutional priorities. The individual mandate litigation meets the conditions that I've identified in my prior work for such an opinion, and if the past was always prologue then I would predict that the Justices will strike down the Affordable Care Act. My Court-watching instincts, though, tell me that they will not do this, largely because I think that the usual majority will want to save its political capital for affirmative action and the Voting Rights Act. Perhaps I don't have enough trust in my descriptive theory, but we'll know soon.

Comments:

As to AA, Kennedy in Parents Involved said he supports race conscious programs but has yet to vote to uphold one yet. Fisher doesn't really sound like one he would either. It would be helpful if he found one he liked.

Roberts opinion in NAMUNDO aside, I'm not aware of Kennedy showing much of a sign of wanting to overturn VRA. I realize Boerne taken to its logical conclusion would, but Kennedy manages to draw lines others find unprincipled.

I'd be curious to see a "preemptive opinion" by the Roberts Court. I too doubt the ACA would be one, though it taking up the state coercion argument that even the 11th Cir. rejected is interesting.

There is also the "Anticipatory Overrulings" idea.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1750398&download=yes
 

Kennedy's opinion in League of United Latin American Citizens v. Perry is interesting too.
 

This is an honest question: what are the limits on the political capital of a majority on the Supreme Court? That is, if you have an established pattern of working together, wouldn't such expenditures be minimal compared to those required within a less obviously factional group?
 

So if Obama is reelected and then followed by Joe Biden or Hillary, for example, he was a reconstructive president. Tune in 4 years from now.

Tune in in seven months.
 

...says the guy who blew his intrade bucks.
 

These poll numbers are great news for John McCain!
 

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