LOS ANGELES, June 26, 2014 — Precisely 17 months after the Federal Appeals Court of DC issued the biggest court decision since Obamacare, the United States Supreme Court followed suit.
In a unanimous 9-0 decision, the High Court ruled that Obama’s recess appointments to the National Labor Relations Board were unconstitutional. While the Supreme Court upheld the general principle of recess appointments, they made it clear that only the legislative branch gets to decide when it is and is not in recess.
Obama’s NLRB appointments and others were made while Congress was technically still in session.
While the decision may seem like “inside baseball,” it has far reaching implications. If Obama’s appointments were unconstitutional, then his appointees never served to begin with.
Every decision they made could be invalidated.
President Obama wanted to stack the NLRB with pro-union individuals, in keeping with his philosophy. Removing them from the board is a major victory for conservatives and pro-business groups and a stinging rebuke for the former Constitutional Law professor.
Yet conservatives may wish to keep the champagne bottles corked. In the short run, conservatives “won,” but perhaps not in the long run.
Of all the times conservatives deserved to defeat President Obama in the arena of ideas, this decision may not have been one of them.
At issue is the notion of what constitutes a “recess” appointment. Presidents have the absolute authority to make recess appointments without Senate approval. Those appointments are temporary. Recess appointments are never popular, but they are legal. This is not in dispute. The situation becomes murky when the Senate holds “pro-forma” sessions.
A pro-forma session in recent years has involved the Senate opening for as little as thirty seconds where one person shows up and bangs a gavel. Even though little to no work is done at many of these sessions, it counts as an actual session. This is designed specifically to avoid being categorized as a recess, even if most members are gone for several weeks.
Obama argued that these pro-forma sessions were a complete sham. On this issue, he is right. They violate the spirit of the law. Obama critics will not find much sympathy for him given that he has repeatedly violated the spirit (and the letter with regards to his unilateral changes to Obamacare) of the Constitution in trying to go around Congress. In this case he was finally beaten at his own game.
What if Democrats did this to a Republican President? Conservatives would go ballistic, and rightfully so.
This does not mean the Supreme Court was “wrong.” They looked at the blackletter law. Attacking violations of the spirit of the law would be judicial overreach, and conservatives would scream about judicial activism.
The solution is to reform pro-forma sessions. Banning them outright may not be feasible, but perhaps requiring a quorum would be one positive step. The government should not be in “partial recess” the same way a woman cannot be partially pregnant.
Either the Senate is “open for business” or it is closed. Open for business does not just mean turning the lights on. The janitor can perform that task.
The actual work has to be performed.
President Obama won the 2012 election. It is expected that a man of the far left would nominate individuals that would be anathema to conservatives. The issue is not whether they are good or bad, since that will almost always be subjective in the hyper-partisan climate of Washington. The only issue is whether the Constitution is being followed. On so many occasions, Obama has sneered at what he refers to pejoratively as “a charter of negative liberties.” Yet his arrogance is a personality trait. It has no bearing on the law itself.
From a political standpoint, conservatives have every right to see an out-of-control President Obama finally for once be humbled and hoisted on his own petard. The irony is that it occurred on one of the only times where he actually had the moral high ground. This ruling was poetic justice, but not necessarily judicious.