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Marcus and Gerson on agreement and division at the Supreme Court, immigration protests

July 4, 2014 at 6:35 PM EDT
Washington Post columnists Ruth Marcus and Michael Gerson join Judy Woodruff to discuss the week’s news, including the Supreme Court’s recent decisions on contraception, how the Obama administration is trying to quell an influx of unaccompanied migrant children trying to cross the border and a pending lawsuit from the House of Representatives against President Obama for using executive orders.

JUDY WOODRUFF: This holiday week has been pretty quiet here in Washington, but there’s still plenty to talk about with Washington Post columnists Ruth Marcus and Michael Gerson. They’re filling in for Mark Shields and David Brooks, who are away for the holiday.

And we welcome you both on this Fourth of July.

RUTH MARCUS: Happy Fourth.


JUDY WOODRUFF: To you, too.

JUDY WOODRUFF: So let’s start by talking about the Supreme Court, this case that I was discussing a few minutes ago with Marcia Coyle, wherein the court, Ruth, the justices handed down an opinion yesterday, with a strong dissent, from Justice Sotomayor about a religious college in Illinois taking exception to how they are supposed to comply with the Affordable Care Act.

What is the — how big of a deal is this?

RUTH MARCUS: Well, it shows the continuing turmoil that we are going to have in this area of law, where — and in part because of the result of the Hobby Lobby decision, the decision that was handed down earlier in the week, because when the court says that corporations and others have religious freedom rights to oppose participating in these contraceptive rules, and when — and they do — and when places like Wheaton College, which clearly has the right to decline to participate in these rules, balk at even signing forms to do it, you are just going to inevitably have this continuing court involvement.

And how interesting it was that it was the three women justices who were speaking up in dissent.

JUDY WOODRUFF: Which is something I was asking Marcia about.

But, Michael, I just learned that this — you are an alumnus of this…

MICHAEL GERSON: I am, of Wheaton College, proud alumnus of Wheaton.

It’s a very religious place, very sincere views on this question. I think the — what the court seemed to be saying was, we are going to eventually decide how this HHS compromise that the administration has pursued is applied to nonprofit — religious nonprofit institutions.

And we are going to give relief to places like Wheaton while we decide this, because it is temporary as these cases come up in court. Now we have decided Hobby Lobby, which is a for-profit, but we’re going to be looking at nonprofit religious institutions.

JUDY WOODRUFF: I think a lot — the question a lot of people have is, how large are the repercussions from decisions like these? Will it end up, as Marcia — Marcia said there are a number of other cases coming down the pipeline that could result in the court moving even farther.

MICHAEL GERSON: Well, I think, in the Hobby Lobby case, the court did something important, but fairly narrow.

It says that RFRA, the Religious Freedom Restoration Act, applies to a certain category, a for-profit category. Under RFRA, if you have a substantial burden on your religious beliefs, then the court has to pursue the least obtrusive means to achieve its ends. And that I think is what we are seeing here.

Now, that law, RFRA, law was approved 97-3 in the Senate and by voice vote in the House and signed by Bill Clinton. I think if the Congress wanted to overturn RFRA, it would be very politically unpopular.


But you do have to acknowledge that, when that law was passed 97-3 — and, by the way, in reaction to a previous Supreme Court case — no one really anticipated that we were going to have for-profit corporations arguing that they had religious rights, whether that’s right or not.

In terms of the broader impact…


RUTH MARCUS: … I think we don’t know yet.

The court in the majority was very careful to say, look, this isn’t going to apply in cases of racial discrimination. It won’t apply in cases of vaccination because there are other issues at stake there.

JUDY WOODRUFF: This is what the majority said.

RUTH MARCUS: This is what the majority said.

The dissenters described it as very broad. We will state. I expect it will be largely confined to this particularly contested area of contraceptive rights and abortion rights.

JUDY WOODRUFF: Well, we certainly are seeing a divided court. And we were talking earlier about — this month about how the court came together in a number of ways, but they have also been significantly divided on…

RUTH MARCUS: Together was while fun while it lasted.


RUTH MARCUS: But I think result — reports of the court’s unanimity have been greatly exaggerated.

And it is totally true, as you were discussing, that there have been a remarkably large number of unanimous opinions this year, two-thirds, compared to less than half over the last five years. But I think that masks continuing divisions on the court.

We saw it this week in the Hobby Lobby. We saw it in affirmative action. There are other — we saw it in the campaign finance cases. There are other hot-button issues that the court didn’t take up this year that are coming down the pike. Same-sex marriage, gun rights, they have been ducking.

And some of these unanimous cases really were faux-nanimous. They just masked deep divisions. Even though there were nine votes for a result, there were very strong divisions about what the right result was to get there.

JUDY WOODRUFF: You have strong thoughts about that, about whether it is an unusual amount of division?


I — we have the odd phenomenon of vicious concurrences.

RUTH MARCUS: Vicious concurrences, yes.

RUTH MARCUS: But we should see more of them…

MICHAEL GERSON: Exactly, which is a little bit of a — there is a false agreement here, but they agree, unless they disagree.

JUDY WOODRUFF: All right. Let’s talk about — I very much want to ask you about immigration. We have got several things going on at once.

One, Michael, of course, is this extraordinary influx of children, some of them very young children coming across the border, the Southern border of the United States. And they’re coming from Central America through Mexico, you have protests that — we reported earlier another protest today in Southern California at one of these processing centers.

What is the right answer here? Both sides seem angry and upset about this.

MICHAEL GERSON: Well, I think President Obama realizes there is a serious challenge here.

He has talked about $2 billion — additional dollars for border enforcement. He has talked about maybe even changing the rules to make it clear that people can’t stay under these circumstances.

I will put it this way, though. I think there’s a lot of justified concern about chaos at our borders and concern that’s — a lot of Middle Americans have about the effects of immigration on wages and other issues.

But blame the system. Blame the coyotes, the people who bring the people in. Blame the administration, if you want. But don’t blame the children who are here because of problems in — abroad.

That is the disturbing element here that I think is the trap for Republicans. As they do criticisms on immigration policy, many of which are valid, they have to do it in a way that is not unwelcoming to a group of people that I think are, you know, a key group of voters.

RUTH MARCUS: And terrible victims in this tragedy of these children at the border, as you were saying.

JUDY WOODRUFF: And yet these protesters are saying, we don’t want any — we already have enough immigrants in this country who are here illegally.



RUTH MARCUS: It is a big mess.

The best hope for the administration, which is something of a faint hope, is to try to get the message out in Central America, do not come, it will not work.

But there is so much desperation that the next best hope is to get the resources and the authorities to process these cases very quickly. But the fact of the matter is, under law, these children are entitled to hearings about whether they have legitimate claims for asylum. And some of them are going to have legitimate claims for asylum. As long as there is so much desperation and violence in Central America, they are going to come, and we are going to have this problem.

JUDY WOODRUFF: But as you were pointing out to us, they are entitled to a hearing, but having to deal with so many at one time.

MICHAEL GERSON: Well, I think there is going to be a debate in the Congress if the administration wants to change that process.

And some of the president’s allies on the immigration issue are not going to be happy if that process is changed. So he could have some problems on his left as this moves forward. And it would be a tremendous paradox, after all of the debate on broad immigration reform, if the only immigration reform that was passed by the Congress in this session were border enforcement.

I don’t think the president could be happy about that. It would put a lot of pressure on him to do executive orders that relate to immigration, because of what he has had to do on the border.

JUDY WOODRUFF: Well, and immigration is one of the places. He was expressing frustration this week, not only after the speaker of the House, John Boehner, Ruth, said, we are going sue you over your use of executive orders. The president at one point this week one audience, so sue me.

But he seems to be expressing more frustration about his inability to get things done. Meanwhile, Ruth, good jobs numbers this week. But none of that is really translating for the president. Is this a particularly difficult moment for the presidency, or how do you see it?

RUTH MARCUS: I think it is particularly difficult moment for the presidency.

And it is not surprising that it is a difficult moment. I think almost all second-term presidents, particularly second-term presidents with oppositional Congresses, end up in this situation. Some of them turn to foreign policy, because that is an area where they have broad discretion and can exercise themselves.

This is not a great area for this president right now, because his foreign policy problems may be more intractable than his domestic policy problems. So, the other thing they do — we saw this with President Clinton — is start to use the pen and executive orders and to try to express their muscularity and their presidential authority that way, but not surprising that he is so frustrated.

JUDY WOODRUFF: How do you see his ability to get anything done right now, Michael?

MICHAEL GERSON: Well, I think it is very limited.

This argument between Congress and the president at the boundaries of the separation of powers goes on again and again. And it will be adjudicated. But you can come across if you take this approach as weak, if you are saying, I can’t get things done, I am going to act in these ways, which are essentially limited.

He’s proved on minimum wage and other things the options are very limited. I would also add, as a speechwriter, you have to be careful about your catchphrases, OK? When Ronald Reagan said, go ahead, make my day, it was Clint Eastwood that he was parroting.

When you say, so sue me, it is like the annoying guy that takes your parking space and taunts you afterwards.


MICHAEL GERSON: This is not a particularly strong, muscular message when it comes to the presidency.

The president is not looking a lot like Lyndon Johnson right now, getting things done. He looks like he is complaining that he can’t get things done. And I think that that is a tough message for him.

JUDY WOODRUFF: And, meanwhile, we are just months away from another exciting mid — set of midterm elections.

Ruth, does all this have bearing on that, or are 1,000 more things going to happen between now and the…

RUTH MARCUS: Well, we know 1,000 more things are going to happen between now and then. We just don’t know what they are.

All of this has bearing. It has bearing in the macro sense, right, whether people are feeling annoyed by the president because he is the guy who stole your parking space, or kind of revved up by him. And probably — how you reacted to that probably depends on where you started.

But there are also abilities within these executive orders, for example, to rev up particular parts of the base. Most important will — we already saw from the president, for example, with the executive order on federal contractors being prohibited from discriminating on the basis of sexual orientation.

JUDY WOODRUFF: Right. Right.

RUTH MARCUS: The really big one will be how far the president chooses to go on immigration.

And here — I thought you made a really good point earlier, Michael — he is going to have a tension not just with the Republicans, who are going to accuse him of overreacting and overreaching on the right, but he’s probably going to have immigration groups on the left complaining that he didn’t go far enough.

JUDY WOODRUFF: Thirty seconds.

Thought on how all of this affects the fall elections?

MICHAEL GERSON: Well, I think the immigration debate, unfortunately, is just another admission that we can only do things through crisis in America.

RUTH MARCUS: Maybe not even then.


Well, stepping back and looking at the whole issue, doing comprehensive reform, it just hit a brick wall. And Republicans had a lot to do with that, because of their own divided base on this issue. But it is just a commentary on our system. We go from crisis to crisis, instead of stepping back and making choices. And maybe that is the most patriotic thing we can do in this context, is step back a little bit, look at the big problems.

JUDY WOODRUFF: Well, we are glad to step back and to step forward with the two of you.

Happy Fourth of July. We thank you for being here, Michael Gerson, Ruth Marcus.

RUTH MARCUS: Thank you. Thanks.