Thursday, June 26, 2014

A unanimous SCOTUS smackdown on Presidential power-grabbing...or is it?

Back in January of 2013, the DC Circuit (the United States Court of Appeals for the District of Columbia) ruled against the Obama Administration with regard to the question of whether or not the President had the authority to make three appointments to the National Labor Relations Board. The Administration had argued that these were properly made recess appointments, but the DC Circuit's ruling held that they were not, as the Senate was technically still in session--what is termed a "pro forma" session--thereby preventing any recess appointments (as there was no actual recess).

The fundamental issue here is when recess appointments should be allowed, with respect to the status of the Senate. In this regard, there are two kinds of Senate recesses: intrasession periods and intersession periods. After the DC Circuit's ruling, I explored and explained these concepts, what they mean and the history behind the general understanding of what they mean. What the DC Circuit essentially said in that ruling was that only intersession recess appointments were constitutional; intrasession recess appointments couldn't be because the language in the Constitution proper is clear: the power to make recess appointments is one that can only be exercised between full sessions of Congress (intersession periods), not during breaks of a single session (intrasession periods).

And such an understanding was nothing new under the Sun. As I explained, everyone in the halls of power understood the issue. What had happened occasionally in the past is that some Presidents had taken a few liberties here, had made recess appointments in unusually long intrasession periods. Of course, when you give people an inch, they tend to take a mile. So, the length of this intrasession period kept getting shorter and shorter. Various Administrations--including this one--commissioned legal opinions on the matter, in hopes of justifying their very clear unconstitutional actions (in making intrasession recess appointments). Of course, there was always pushback from the other side, pushback that culminated with Senator's Reid's use of pro-forma sessions to prevent the Bush Administration from making intrasession recess appointments, a practice repeated by Republicans under the current Administration.

The big difference, the reason why this case went to the DC Circuit? The Obama Administration decided it would simply ignore the pro-forma sessions and go ahead with recess appointments anyway. And for that very clear overreach of assumed executive power, the DC Circuit brought the hammer down, not only invalidating appointments made during pro-forma sessions--like Obama's--but also declaring all intrasession recess appointments to be unconstitutional.

The response from the Administration and much of the Left to the DC Circuit's very correct ruling was predictable: outrage and hyperbole, ludicrous claims about judicial activism and a judiciary overstepping its authority. But as I noted in the previous piece, such a response required the legal geniuses on the Left--and the constitutional scholar in the White House--to ignore past opinions on the matter from people like Ted Kennedy and Lawrence Tribe, who very much understood the reality of all of this, who recognized the simple fact that recess appointments are far mote limited in their potential application than various denizens of the White House would like us to believe.

Though I have to say, I think most of the people--including the President--on the left who aren't card-carrying morons get this: they know the DC Circuit was completely correct (as was Ted Kennedy), but they are unwilling to admit this in the moment for purely political reasons. Rest assured, if this ruling had come down during the previous Administration, most of those supposedly outraged by it would be applauding it, while most of those now applauding it would be feigning outrage. So it goes.

But the DC Circuit's ruling was appealed, and the case--National Labor Relations Board v. Noel Canning--moved on to the Supreme Court of the United States. And today, that body issued a ruling on the case. That ruling addressed four issues related to recess apppintments: 1) whether or not they can be made during intrasession periods, 2) if so, whether or not there a limit in this regard based on the length of the intrasession period, 4) whether or not such appointments can be made for positions that were not vacated during the recess (the Constitution indicates they cannot, in my opinion), and 3) whether or not pro-forma sessions serve to block the ability of the President to make recess appointments.