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
mespo, you convict previous presidents but then give obama a free pass for all his sins, the biggest one of which is taking us into debt that we will never recover from. Handing out corporate welfare checks, medicare checks, social security and food stamps is inflationary. If you are in favor of the government spending more money, at least you should favor directing that money towards projects that would increase the GDP, actually employ people rather than putting them in front of TV sets 8 hours a day, balance supply and demand, to the extent that inflation is under control so that the average american can afford to live. Production made america, and only production can save her. As it is, your government spending drives prices up, dilutes the gdp and wages, placing everyone on a perpetual treadmill. I realize this is a foreign concept for someone earning a paycheck rather than actually running a business, but it shows how we desperately need to get rid of the career politicians, replace them with individuals who have real experience with production — not destruction.
I read this blog every day but I think that it is time to stop. I’m sure you are all really sad that our country will be going to hell in a hand basket with the rich buying the government that does what they want. But you aren’t willing to do anything about it. But, you’ll have your intellectual integrity, for what it is worth. Thank god I’ve only got another ten or twenty years to live with this mess. I fear for my children’s welfare.
Annie, When Democrats obstructed some asinine judicial appointment by Bush, did you object to this obstructionist behavior on their part? Did you call them “unpatriotic”. If not, why not?
Annie,
As I said on a different thread, your comment about holding the previous president accountable for his actions is interesting. The people who should be holding Bush to account in a court of law are Obama and Holder. Yet, they do not do this.
It’s not really true that they did the same crimes as Obama. Obama has committed more and different crimes than Bush and Cheney (in addition to committing the same crimes). Still, I agree with you that Cheney and Bush should be held to account for their crimes (and I have said this many times). You need to be saying that you want Bush/Cheney to be held to account and you want Obama/Biden to be held to account as well. Crimes do not disappear because they are committed by “our” party.
I don’t assume anything. You simply will not call for holding Obama accountable in a court of law or through a perfectly lawful process called impeachment. Why not? You say it about Bush, why not Obama?
Annie – one of the truisms of politics is to not go after the previous administration. If you do, it will come back to haunt you when the next administration comes after you.
Paulette, exactly! What a bunch of unpatriotic jerks. Obstruction is no way to govern.
I notice Turley mentions the abortion ruling in passing, and also notice that no one seems interested enough to comment on that.
This blog becomes more trivial by the day. I guess it’s JT’s blog and he can do what he wants with it, but…
Does anyone find it ironic that now moron nut-jobs can scream in the face of women making the most difficult decision of their lives from just inches away, because they are on “the public sidewalk,” but protestors at the Supreme Court itself are not afforded that right; or at presidential speeches must stay half a mile away in wire enclosed ‘free speech zones?’
I guess not.
I say screw this republic. It is completely absurd. Let’s scrap it and start over.
Jill, Are you catching my drift yet????
well paulette, Congress is obviously RAAAAACIST.
Jill, Beth Meier thinks we’re all racist. When the game is almost over and you’re about to lose, you use every play and use dirty tactics. Well, that’s what classless teams do. Teams w/ character take the loss graciously and learn from it. I took my lumps after voting for Obama in 2008. Of course, I’m not a cultist.
The members of Congress should all be tried for dereliction of duty.
And Jill, you are assuming I don’t hold Obama’s overreaches as bad as Bush’s.
Jill,
We cannot just focus on the current Preaident when the previous President got away with the SAME thing. How can your complaint about this President not include the misconduct of the previous President? That makes one look like they are very partisan and have a serious case of amnesia.
Wall Streeter, hedge fund, lobbyist have all FLOURISHED under Obama. Regular folks are still unemployed. College grads are flipping burgers. I thought Dems were supposed to be for regular folk. That’s why I gave Obama my vote in 2008, I took a chance. Boy, did I learn!!
Jill, Most of us have learned the hard way regarding whom to respond to and who to ignore.
Jill, You just wrote a thoughtful, reasoned comment. I appreciate your intellect and objectivity, because I too am reasonable and capable of independent thought.
Annie,
I don’t understand your point. We do not have a Republican president, we have president Obama. As a party loyalist you must honestly deal with the present wrongdoing by leaders of your party. Every citizen is called to hold our “leadership” to account. Why do you not hold President Obama to account for his lawless actions?
It seems pretty clear given the unanimous decision the Supreme Court is likely not going to have much sympathy for unilateralism by the Executive Branch.
Jill, seriously, you think a Republican president wouldn’t have gone even further in the overreach and spying that the Obama Adminstration has?
As you must know, this has already occurred and Obama has been a part of the process.
The DOW was at 9600 or so when Bush left office and is at about 17,000 now. For all of you RepubliCons out there that berat Barack, if your boy gets elected in 2016 then invest in the DOW in January when Romney or whomever it is gets signed in and see how you do in 4 years. My bet is that it will be ugly. If the Dems lose in 2016 then I will pull out now. Like my father should have when Hoover came into office.