The Supreme Court has ruled in Noel Canning v. NLRB, No. 12-1115, and found that President Obama had indeed violated the constitution in his recess appointment. The decision was unanimous. I will be discussing this and the abortion case ruling at 1pm with Wolf Blitzer on CNN.
The unanimous decision was academically gratifying because I was the lead witness in the Judiciary Committee hearing on the appointments. Roughly two years ago, I testified in Congress that the recess appointments of President Barack Obama were unconstitutional. Those four appointments by President Obama included Richard Cordray, who had been denied confirmation to a consumer protection board in a Republican filibuster. While I liked Cordray, I testified that the appointments were in my opinion clearly unconstitutional. As someone who previously testified and written that the appointments were flagrantly unconstitutional, I received a great deal of push back. I was highly critical of the work of the Office of Legal Counsel in my testimony and my writings, which advised Obama that he had this authority. See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review (2013).It was a disappointing piece of work by an office that used to be independent and highly respected for its analysis. For prior columns, click here and here and here and here.
The decision is an important victory for the separation of powers. It will also further magnify the growing controversy over President Obama’s unilateral actions in various areas — part of his pledge to circumvention Congress to get things done. I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. Obama has repeatedly suspended provisions of the health care law and made unilateral changes that were previously rejected by Congress. He has also moved hundreds of millions from one part of the Act to other parts without congressional approval. Now, his administration is reportedly changing key provisions of the ACA to potentially make billions of dollars available to the insurance industry in a move that was never debated, let alone approved, by the legislative branch. I ran another column this month listing such incidents of executive over-reach that ideally would have included this potentially huge commitment under Obama’s claimed discretionary authority.
The Court finally defended the lines of separation in one of these disputes. The Court specifically rules out the type of “going it alone” approach of the President in the use of recess appointments and other Executive powers:
Regardless, the Recess Appointments Clause is not designed to overcome serious institutional friction. It simply provides a subsidiary method for appointing officials when the Senate is away during a recess. Here, as in other contexts, friction between the branches is an inevitable consequence of our constitutional structure. See Myers, 272 U. S., at 293 (Brandeis, J., dissenting). That structure foresees resolution not only through judicial interpretation and compromise among the branches but also by the ballot box.
Here is the opinion: Canning
Prof. Turley,
Just one question.
Which opinion would you sign onto; the majority or the concurrence?
The most significant thing about this opinion is that it was unanimous. Even the statists on the court have had enough of usurpation of legislative power by the executive.
If Congress and taken the trouble to check him when he first ignored the law, things would not have progressed this far. And Democrats would have been perceived as fair, holding their own party to high standards. Instead, we have Democrats who ignore this behavior because it benefits their party.
At least Boehner, who is not my favorite politician, has claimed he will file a lawsuit against Obama for failing to follow the law.
Professor Turley,
Your blog is such a refreshing dose of nonpartisan, commonsense advocacy for the rule of law and constitutional self-government. Thank you for it, and for all that you do in the public interest.
Although I am more aligned with liberal and progressive positions, I am disgusted by the increasingly shrill partisan groupthink on both sides of the aisle. It’s especially sad to see a network I’ve long watched regularly – MSNBC – descend further and further into this muck.
This was fully on display last night in the disrespectful, smothering, partisan hack-like manner with which Steve Kornacki gave you very little time to speak about President Obama’s executive overreach, while he allowed Howard Fineman (always reliably partisan left) to dominate the conversation. Still, you handled it like the class act you are. As for Kornacki, I thought he was a little more evolved as a talking head.
Many presidents have tried to get around the separation of powers. Obama will go down in history as the president who was allowed to ignore the separation of powers and create an imperial presidency.
And it will be really difficult to expect future presidents, of any political party, to ignore this precedent and not make similar power grabs.
When it comes to asset preservation for some people, saving for the future is a foreign concept, whether it’s preserving money or political capital. Obama continues to brag about his rags-to-power story, but rather than using his success as an opportunity to be a role model for every minority, he has instead shown them all that the only right thing to do is to piss everything away. Whoever said that money can’t buy poverty, was dead wrong. That the court’s opinion is unanimous is less about what is constitutional, more about disciplining the bully in the White House. Justices that some have had no use for, suddenly are useful.
leej, The Dems have been acting like people on death row, nothing to lose! many of their myopic rule changes will be biting them in the butt in November. How about the Senate Filibuster rule change. EVERYONE but Harry Reid and the Dem Senators saw that as suicide.
But the ruling’s impact may be keenly felt by the White House next year if Republicans capture control of the Senate in the November election. The potential importance of the ruling lies in the Senate’s ability to block the confirmation of judges and the leaders of independent agencies like the NLRB. A federal law gives the president the power to appoint acting heads of Cabinet-level departments to keep the government running.
Still, the outcome was the least significant loss possible for the administration. The justices, by a 5-4 vote, rejected a sweeping lower court ruling against the administration that would have made it virtually impossible for any future president to make recess appointments.
The lower court held that the only recess recognized by the Constitution is the once-a-year break between sessions of Congress. It also said that only vacancies that arise in that recess could be filled. So the high court has left open the possibility that a president, with a compliant Congress, could make recess appointments in the future.
A recess appointment can last no more than two years. Recess appointees who subsequently won Senate confirmation include Chief Justice Earl Warren and Justice William Brennan, Federal Reserve Chairman Alan Greenspan, two current NLRB members and Consumer Financial Protection Bureau director Richard Cordray. Former UN Ambassador John Bolton is among recess appointees who left office because they could not win a Senate vote.
http://hosted2.ap.org/APDEFAULT/3d281c11a96b4ad082fe88aa0db04305/Article_2014-06-26-US-Supreme-Court-Recess-Appointment/id-ffc425ebaf814f71b01ee9b5d731e3bb
(Oh and to the post that said why look at past actions, those that forget the past are condemned to repeat it. Obama has done what other prez’s have done only because of the animus against this president it is bad when he does it but fine when Bush et al did it.
And now Boehner wants to sue the president so the “fiscally responsible” GOP wants to waste more of the taxpayer’s money (like they did with Starr’s unfruitful waste of 70 million$ to try and find something on Clinton and Whitewater.)Funny how I don’t see people complaining about the wastefulness oftime and taxpayer dollars on the GOP’s obstruction and relentless worthless votes and time wasted on repeal for instance of the ACA0
“@Jim22
Why do hillbillies always assume that anyone who disagrees with them is a liberal?”
Why does the pot call the kettle black?
Professor Turley–
The opinion is fresh but I hope you have time soon to address Scalia’s charge:
“The real tragedy of today’s decision is not simply the
abolition of the Constitution’s limits on the recess
appointment power and the substitution of a novel frame
work invented by this Court.
It is the damage done to our separation-of-powers jurisprudence more generally. It is not every day that we encounter a proper case or contro
versy requiring interpretation of the Constitution’s structural provisions. Most of the time, the interpretation of
those provisions is left to the political branches—which, in
deciding how much respect to afford the constitutional
text, often take their cues from this Court. We should
therefore take every opportunity to affirm the primacy of
the Constitution’s enduring principles over the politics of
the moment. Our failure to do so today will resonate well
beyond the particular dispute at hand.”
@Jim22
Why do hillbillies always assume that anyone who disagrees with them is a liberal?
Gee Mr. Turley…. were you as upset at all the BS conducted by G.W. Bush? You have been quite successful today in bringing out the right wing/anti-Obama comments. Are you going to be advising Boehner on his silly lawsuit and possible impeachment proceeding?
Why do libs always point to previous bad behavior to justify current bad behavior instead of just admitting that what is going on is bad?
Obama is a pathetic president, but JT is showing his bias.
Reagan, the right’s hero, started using signing statements as an ersatz line item veto. Reagan used writings by Samuel A. Alito to justify his actions. Bush the Younger used signing statements with wild abandon.
Why is one form of increasing the powers of the Executive Branch bad, but another form is acceptable?
This is a nice big bite mark on obama, one long overdue. One would think that he might have shown some restraint, after the tea party threw the democrats out of the house. Instead, he’s put all of his chips on the table, setting the stage for a GOP president and conservative majority in both the house and senate. This guy has set himself up as the master of pissing it all away.
http://online.wsj.com/articles/supreme-court-rules-nlrb-recess-appointments-invalid-1403791866 “The decision provides a narrow win for employers who contested the validity of labor board rulings made by the recess appointees. But by a 5-4 vote, the court refused to virtually eliminate the president’s power to fill vacancies when the Senate wasn’t transacting business, as a lower court had done.”
Gosh golly gee! I thought Barry O. was a professor of ConLaw at Northwestern. I’m sure he had the time as he billed about half the hours of every Caucasian or Asian associate at his large law firm. And he even managed to get the same pay! Damn, how do you think he managed that one?
At first glance, does this help Speaker Boehner with his lawsuit regarding the issue of non-justiciability of political questions?
How utterly bizarre that you would find a ruling from this Supreme Court so personally gratifying. You will now almost surely find yourself on the wrong side of history.
Hopefully Boehner will be filing suit this morning.