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
Just what has Obama done, Constitutional or Unconstitutional, that will put him on Mt. Rushmore? Mount Narcissus for sure, but not Rushmore.
mespo, The President has lost 12 UNANIMOUS decisions since January 2012! It’s like my old man would say. “If you go through this world and think everyone doesn’t understand you and they’re all a-holes; well my son, that means you’re the a-hole.” This quote applies to Obama, not you. You’re merely partisan. This house of cards is tumbling. The Separation of Powers was written for times when the govt.is divided.
http://www.washingtonpost.com/opinions/dana-milbank-john-boehner-wants-to-sue-president-obama/2014/06/25/fc1e93e0-fc9d-11e3-932c-0a55b81f48ce_story.html“Ater howling about excessive lawsuits, they are embracing long-shot litigation. After lamenting activist judges, they are now insisting that judges be more activist and shed their long-standing reluctance to adjudicate disputes between the elected branches.
House Speaker John Boehner of Ohio meets with reporters on Capitol Hill in Washington, Tuesday, June 24, 2014. (J. Scott Applewhite/AP)
Even some conservative scholars argue that lawmakers probably don’t have a legal standing for such a suit. If Republicans persuade the courts to grant them standing, the case could take years to work its way through the system, at which point Obama will be gone. Adding to the charade, the taxpayer-funded legal fight would be waged under the authority of the Bipartisan Legal Advisory Group, which is known by the acronym “BLAG” and is bipartisan only in name because it is controlled by the House majority.”
The Constitution exists to check the ambition of the justices of the Supreme Court.
Let’s consider the “usurpation” of legislative power by the SCOTUS.
The Constitution has power. The Supreme Court has no power.
The Constitution rules. The Supreme Court is subordinate to the Constitution.
The Constitution prevails. The Supreme Court exists to assure that.
The Supreme court is the “concierge” of the Constitution.
The Supreme Court has no power to “interpret” or otherwise modify the words of the Constitution – that is usurpation, malpractice and insurrection.
The Supreme Court exists to read words, not to agree or disagree with the effect of the Constitution or legislation, or to manipulate the Constitution or legislation to obtain a particular effect. The SCOTUS does not have the power to “legislate from the bench.” The consideration of and deliberation over the words of the Constitution were done by the 55 men who unanimously agreed on the words of the Constitution.
55 men unanimously agreed on the words of the Constitution.
9 justices “split” and variously, illegally controvert the words of the Constitution.
Deviation from the literal words of the Constitution and split decisions are malpractice worthy of penalties.
Who will honor, support and uphold the dominion of the Constitution over the simple functionality of 9 fallible justices of the Supreme Court? Who will supervise, direct, impose corrective action on and penalize the justices of the Supreme Court for subjective and ideological decisions, derived from personal bias, that controvert the literal words of the Constitution?
The Constitution decides, not the justices of the Supreme Court.
The Supreme Court was intended to apply the literal words of the Constitution to “check” the “ambitions” of both the executive and legislative branches.
The Supreme Court is the historical, singular American failure.
Bob, Esq:
“You’re on the wrong side of principle; and now history.”
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We don’t put presidents on Mt. Rushmore for doing nothing when the country is in desperate need. That’s why Lincoln, Jefferson & Roosevelt (all accused of acting unconstitutional in office) didn’t have to move over for that good ol’ gentleman, Cal “do-nothing” Coolidge. (Washington must have led a charmed life.)
BTW I think history will be kinder to me than you think. It hasn’t spoken yet.
mespo – there is a new book claiming that Coolige was suffering from senility before his stroke and he was less than useless at Versailles.
http://www.washingtonpost.com/blogs/post-partisan/wp/2014/06/25/boehners-frivolous-lawsuit-against-obama/
I can’t wait to see what becomes of this lawsuit.
SR: “…expand executive power to act without congress when such cooperation is mandated by the constitution.”
Nick Spinelli
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.
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Political heart throbs.
See my quote of Boehner above.
The pornographic use of the filibuster by the GOP who saw it as the only way to get off has caused recess appointments.
The courts were so desperate for judges that Bybee and other fascists were put on the bench.
Both the filibuster of judges and this decision were the correct direction.
Mespo,
A certain president’s inability to function with congress is not license to expand executive power to act without congress.
You’re on the wrong side of principle; and now history.
Things are heating up….Come on punk, touch me, and I’ll sue.
samatha:
All the Repub Presidents who exercised this newly declared unconstitutional power stayed pretty dry by my count. Sauce for the goose?
Bob, Esq.
At first glance, does this help Speaker Boehner with his lawsuit regarding the issue of non-justiciability of political questions?
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No.
We will get a chance to mention to him his famous harangue a while back.
He quoted some fellow Reps as saying “I knew we would lose” when they “shut down the government.”
Annie:
You can have the purest, most pristine form of constitutional government that doesn’t work and all it’s good for is a place in a museum.
Paul S:
And 7 justices liked the Dredd Scott and Plessy decisions. History is the real supreme court not the opinion of 9 people.
mespo, you mean like refusing to negotiate to make the republicans look bad? How did that work out for you? Your’re saying previous presidents peed into the wind, and now you want to do it, too, without getting wet?
My comments on prior posts on this subject:
(Abuse of Power).
Now, how many recess appointments by how many previous presidents went unchallenged?
Some want government so small it can be drowned in a bathtub. Perhaps Congessional gridlock is just the first step in the demise of our government, for those who would see it destroyed to be replaced with a theocracy, or oligarchy. How patriotic.
“Here, as in other contexts, friction between the branches is an inevitable consequence of our constitutional structure.”
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Friction? I wonder if the founders foresaw a branch of the government hellbent on bringing the entire government to grinding halt based on some skewed notion of principle or for partisan politics? Or one, that for ideological reasons, does nothing at all? How about one that frustrates the constitutional power to make such recess appointments by acting all 7-11-like and failing to close even when, of course, in reality they are closed. Or one that fails to have the votes to close an agency it doesn’t like but has the cunning to gut its mission by failing to appoint people to run it?
Obama has made 32 such appointments. Bush II made more than 171. That holiest of holies of the Repubs, Ronald Reagan, made 232. Teddy Roosevelt made 160. Nary a peep out our conservative brethren then.
I also wonder if SCOTUS’ approach to constitutional law makes sense in the context of a society augmented in part by a social welfare system upon which many poor and elderly rely on simply to live. How about about one where justice depends on simply having enough people showing up just to function like the NLRB which protects workers rights to organize to prevent abuses? SCOTUS may have every constitutional reason to outlaw the works of the President in getting something done through recess appointments. I wonder if they ever stop to consider the moral ones.
Some may herald the decision as a check on Presidential excess. I see it as a prescription for more gridlock and institutional sclerosis.We can look at the big picture if we want to and praise the limited approach to governing that this decision limps along on or we can see behind the purposeful subterfuge at a faction of people dedicated to using every as pretext available in our democracy to make it stop running.
Courts used to see things a lot better.
mespo – all of the court saw it the same way.
Appreciate Turley’s views on the excesses of this Administration’s power grabs with respect to the intentions of our Constitution, but honestly, Mr. Turley, do you have to try to buy credibility by – in EVERY interview – reminding viewers/readers how you SUPPORT Obama and his policies and how you voted for him? That’s really not relevant at all to what you are saying. We get it: this admin is extreme with respect to the going it alone stuff, in quality if not in quantity of, say, exec orders. But that stands on its own, and has nothing to do with your personal politics. I’m personally gratified that an Obama supporter is actually and finally voicing these real concerns, but enough already of your disclaimers. Thanks.
Maybe some more pundits will grow a pair and man up like JT. The Emperor has been naked for several years now.