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
Annie, that has already happened and Obama has been a part of the process.
Jill, I’m speaking of some very powerful people who want to replace our current form of government with a different form of government so far removed from the Consitution it would make your head spin.
http://www.cnet.com/news/politicos-squabble-over-missing-white-house-e-mails/
What about these emails?
Jill: “I know many here were not on this blog during the reign of BushCheney, but if you look at the archives you will see that JT has been extremely consistent in excoriating and warning about the dangers of executive lawlessness.”
I remember and I’ll second that.
Annie,
I don’t know why it doesn’t bother you that the president is acting like a king. You write: “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.”
Separation of powers is at the heart of our system of govt. Losing that is just a part of how Constitutional government has seen its demise in the US. The fastest way to a theocracy and oligarchy (which we already have) is through concentration of power into a lawless executive.
Not only is it patriotic to stand against a lawless executive, it is our duty as citizens to oppose such. Congressional gridlock is the least of our worries when we cede power to the executive who acts as though he were a king. The dangers of the latter don’t remotely compare to the harm of the former.
I know many here were not on this blog during the reign of BushCheney, but if you look at the archives you will see that JT has been extremely consistent in excoriating and warning about the dangers of executive lawlessness.
Nick, You are a racist for just pointing out the race card. I personally would love a govt. that did NOTHING! Sounds like a great place to live.
I agree, Bob. But, Holder will not appoint one. He’ll resign first.
Beth just played the race card. She slid it out there in the first sentence and completed it w/ her last sentence. So, all you folks opposed to Obama, YOU’RE RAAAACIST! Despicable, desperate and depraved allegation.
“We’ve amended it that way every time…”
Mark,
I said agreement with principle, not precedent.
So far as I see, the constitution has not been amended to provide for the type of executive power you crave.
Nick,
I have no idea what actually occurred. What I do know is that the actions of the IRS and the excuses they’ve given for their “inability” to cooperate with a congressional investigation screams for the need for an independent prosecutor.
So I suppose the best thing for Obama is to just do nothing-DO what the white guys want. Let’s be sanctimonious-We are justified in allowing prejudice and hatefulness in the name of the Constitution. Obama should just be President with no power-what the white guys want, Perhaps if Boehner had done his job, -A LEADER of the House- we would not have to deal with this issue. How many times did George Bush use his executive power!!!! I suppose if we have a completely incompetent Speaker of the House, it would be better for the president to just play Golf for the next 4 years-and the white guys will all bitch. This is ridiculous…
Bob, One of 2 things have occurred w/ the IRS. Either the WH clandestinely directed them to usurp the free speech of political groups opposed to them, or the IRS did it on their own. Think about if for a moment. The first is Nixonian. It’s happened previously, and we dealt w/ it. But the latter is much more chilling. Big government needs big government politicians elected. The IRS is the “sales force” for big government. Helping sell politicians that will perpetuate the bureaucracy, not needing any direction from politicians, they instinctively know what to do. Just a wink and nod is all that’s required.
nick:
“FDR was a much better war president than Depression president.”
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Agreed.
FDR was a much better war president than Depression president.
mespo, New Deal programs helped a bit. But, we didn’t come out of the Depression until the WW2 economy.
GDP declined almost 3% in the first quarter of 2014. And, much of that decline is because of Obama’s Mount Narcissus achievement, Obamacare. The bailouts by Obama did fend off disaster, but @ what cost? Obama’s “boldest” move was bailing out GM and Chrysler. Let’s ask the people who are limited to compensation from the criminal negligence by GM what they think of the bailout.
Bob, Esq.:
““I have the power because I know better” — then you’ll be on the right side of principle and history.”
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We’ve amended it that way every time we had a real national crisis: 1861, 1933, 1941 & 2001 to cite the years I can think of when that’s happened. It’s a principle as old as Cincinnatus. Desperate times require desperate measures. The Constitution admits that principle in Article I, Section 9, clause 2 Thankfully, we’ve had men who believed in peacefully relinquishing power after the danger passed.
Mark,
The day the constitution is amended to reflect your theory of executive power; i.e. the Charles Bronson in “Death Wish” — “I have the power because I know better” — then you’ll be on the right side of principle and history.
Until then you remain on the wrong side of principle and for now the wrong side of history.
nick:
I think you underestimate Obama’s role in preventing and mitigating the potentially single worst economic disaster in history caused by those Repub cronies on Wall Street over-leveraging and fighting regulation. Obama’s not a great president in my view but he did shepherd the country through some dark times not of his making. That counts for something.
nick:
I agree arguing with the referee is ultimately fruitless from a results point of view, but the argument itself is sometimes important. Until 1937, FDR lost every court challenge to his New Deal programs. Once he started talking court-packing, things changed. How’d history judge those programs?
Jim22: 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’
It’s called ‘precedent’. Very big deal in the legal world. Republicants do it just as often.