oday’s Supreme Court ruling
in NLRB v. Noel Canning
, the recess-appointment case, is an unfortunate Breyer “split the baby” decision that is sure to disappoint almost any serious scholar (see my post here
on Pacific Legal Foundation’s Liberty Blog). But at least it reached the right result on the recess appointments at issue, and that begins the slow but vitally important process of checking our imperious president. It will spawn even more helpful litigation, including the lawsuit proposed by Speaker John Boehner, as it should. There is not much to lose and a great deal to gain from court rulings that cut back on even some of the president’s abuses of power. Moreover, a president already suffering terrible approval ratings will get deserved pushback in many arenas, including the lower federal courts.
In the Canning decision, the president got his comeuppance for a flagrant constitutional violation that seemed then to be more about energizing his diehard base and sticking it to the despised GOP than anything else. Although today’s Supreme Court case involved three illegal NLRB recess appointments, readers will recall that Obama also purported to recess-appoint Richard Cordray on the same day to head the Consumer Financial Protection Bureau (CFPB). GOP senators had been holding up Cordray’s confirmation based on various concerns, mostly about the nature of the CFPB’s vast powers. On the day of his illegal recess appointments, the president taunted the senators who had the audacity to withhold their advice and consent for Cordray: “I refuse to take no for an answer . . . When Congress refuses to act . . . I have an obligation as president to do what I can without them.” His error, however, was to believe he had been crowned emperor and could dispense with any constitutional provisions that got in his way.
On a personal level, I am savoring a long-awaited “I told you so” moment. In striking down President Obama’s unilateral and unconstitutional recess appointments, the Supreme Court explained that Obama was not just as bad as past presidents in abusing the recess-appointment power. No justice could countenance Obama’s claim that he could unilaterally decide when a Senate session was legitimate. This is almost exactly what, two and a half years ago, I publicly predicted would happen if Obama did not compromise on the matter.
On the day of the illegal recess appointments, the New York Times and the Washington Post quoted me as saying that the unconstitutional appointments would not stand, for the simple reason that the Senate was not in a constitutional recess when the illegal appointments were attempted. That is precisely the ground the Court chose to rely on today. The Washington Post also ran, the next day, my longer op-ed with Ed Meese warning that, if the president did not compromise with the Senate, the courts would go further and that their rulings could “weaken the office of the presidency.”
A year later, the D.C. Circuit issued just such a ruling. Yet the White House kept the illegal officers in place, arguing that no one could have predicted an invalidation of the recess appointments. On that day in early 2013, NRO published my prediction that the high court would take the case, which quite accurately forecast the outcome even before a certiorari petition was filed. I said the justices would “narrow the grounds for striking down the illegal appointments” but would not contort the text of “the Constitution to uphold these unilateral actions.”
I am quite surprised that the five-justice majority reached many constitutional issues that were unnecessary to its ruling and, in doing so, endorsed the president’s expansive recess-appointment practice in other circumstances. It didn’t need to reach those issues. Traditionally, the Court does not decide such significant constitutional questions when it could rule on a narrow ground, and all justices agreed on the narrower ground. Yet a win is still a win.
In some situations, the “I told you so” moment is not at all sweet. This one is at least bittersweet. Today’s decision is a defeat for an imperious president whose disregard of the Constitution’s text is massive, and at least a partial victory for individual liberty, since that is the ultimate purpose of the checks and balances inherent in the constitutional separation of powers. Now let us hope that the full weight of the mighty pendulum the president has set in motion will swing back toward constitutional order. Justice Anthony Kennedy will eventually let us know.
— Todd Gaziano is the executive director of Pacific Legal Foundation’s new Washington, D.C., center and its senior fellow in constitutional law.