Obama's legal changes may be fewer than expected

McClatchy NewspapersFebruary 20, 2009 

WASHINGTON — President Barack Obama surely will steer a different legal course from his predecessor's, though perhaps not as dramatically as some hope.

On Friday, in a closed-door session, the Supreme Court was scheduled to consider Obama's first reversal of a Bush administration courtroom position. The switch, in a case over power plant regulations, could foreshadow others in hot-button controversies such as the treatment of Guantanamo Bay detainees.

Blatant legal reversals are rare, however. Even when voters have spoken and presidents change, legal arguments can keep on keeping on.

"I think people will be surprised at how much consistency there is between administrations," said Meir Feder, the head of the New York appellate practice for the law firm of Jones Day.

In theory, a new administration takes over many legal tillers.

The Justice Department chooses prosecutorial priorities. For the Bush administration, this meant voting fraud, immigration and child pornography. The department's Office of Legal Counsel opines on what's legal. For the Bush administration, this facilitated waterboarding and indefinite detention of terrorism suspects. The Office of the Solicitor General argues Supreme Court cases and files amicus briefs in other cases of interest.

Since October, for instance, the Solicitor General's Office has weighed in on at least two dozen Supreme Court cases that directly involve the federal government and has filed 17 amicus briefs in other cases. Each represents a Bush position that Obama, theoretically, could reconsider.

The Solicitor General's Office also decides which federal appeals to pursue. This adds up. Last year, the federal government was the plaintiff or defendant in some 7,458 cases filed with various appeals courts.

Obama's lawyers must figure out which legal postures they'll hold, which they'll abandon and which they'll tweak. This won't be easy. Legal bureaucracies develop momentum of their own. Presidential-authority arguments that appear obnoxious to candidates become appealing once the candidates reach the White House

"Ideally, in as many cases as possible, the government would note a need for more time so that considered decisions can be made," said Judith Resnik, the Arthur Liman Professor of Law at Yale Law School.

Qatari native Ali al Marri is one whose fate could depend on it.

An alleged "enemy combatant," Marri has been imprisoned without trial since December 2001. The Bush administration argued that Congress intended to authorize the indefinite detention of suspects such as Marri.

"A contrary conclusion would severely undermine the military's ability to protect the nation against further al Qaida attack at home," Bush's solicitor general declared in a brief last year.

Rather than saddling the Obama administration with this position, the Supreme Court granted a brief-filing extension until March 23. Few doubt that Obama's position will differ from President George W. Bush's hard line, but how these differences are worked out remains in question.

Feder, who also runs the New York University School of Law's Supreme Court Litigation Clinic, suggested that Obama's team could try steering the case back to a lower court.

Obama's Justice Department already has retained another controversial Bush position in a case that involves covert CIA flights carrying prisoners overseas. In Mohamed v. Jeppesen Dataplan Inc., five men who claim that they were tortured overseas are suing the San Jose, Calif.-based company company, which they say helped administer the overseas flights.

Ethiopian native Binyam Mohamed, for one, reports that he was secretly detained and tortured in Morocco for 18 months. He says that security agents repeatedly beat him, cut him on his genitals, broke his bones, drugged him and threatened him with rape and death.

Obama's Justice Department, taking a page from the Bush administration, is arguing before the San Francisco-based 9th U.S. Circuit Court of Appeals that Mohamed's case should be dropped because of the danger it poses to revealing state secrets.

Resnik called this status quo argument "particularly disappointing."

Similarly, Obama's Justice Department is defending in court a Bush administration policy that permits concealed weapons in national parks.

In the next two weeks, the Supreme Court will hear seven cases in which the Bush administration either was a party or filed amicus briefs. On Friday, the court agreed to let the newly revamped Solicitor General's Office join the oral arguments in two of the cases, one of which involves Obama's home state of Hawaii.

These presentations could be used to revise and extend aspects of the earlier Bush administration briefs.

"The Solicitor General's Office tries to avoid changing positions in pending cases, to retain its credibility, but it does happen," noted Thomas Hungar, a former deputy solicitor general in the Bush administration.

EPA v. State of New Jersey illustrates a rare blatant reversal. Last February, the Solicitor General's Office called a lower court's decision involving mercury-emission regulations "particularly problematic."

This month, however, Obama's Solicitor General's Office declared that New Jersey and the lower court were right all along. The Supreme Court probably will announce by Monday that there's no longer a case to be heard.

Another legal turnaround occurred in a 1994 voting-district case called Holder v. Hall. The Clinton administration solicitor general reversed the earlier Bush administration view, explaining in a footnote that the legal analysis changed "upon further reflection."

"The joke in the office was that it should have said, 'upon further election,' " Hungar recalled.

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McClatchy Newspapers 2009

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