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
Wow. Turley just wrote an awesome blog and all you can do is squabble. lololol
SWM, lesson learned, what a waste of my time.
Annie, Don’t bother to go around that block again. I did it many times in 2010. When she spoke favorably of Eric Erickson of Red State, the light came on.
Wow, I think it may have been seven years.
By emphasizinghe fact that the current Presdident is Democratic, while at the same time making no mention of the very same activity by Bush is a dead giveaway Jill. “by leaders of your party” another dead giveaway. Jill you are as big a partisan as you accuse me of being. As I said, impasse. End of story.
Annie – you are being hypersensitive about this issue. Jill is right. She is not being partisan but you certainly are, regardless of who you voted for.
Jill,
You are not being partisan. Hyper-alarmist at times; yes. But never partisan.
Annie, Here is my comment from 5:16 Would you please explain how it is partisan so I may address your concerns:
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?
Paul C, Actually, my opinion of the IRS is that they are incompetent. Hope you all get together with Palin and form a third party.
SWM – rather reform from the inside, not form a new party. That is what really scares the begeesus out of the politicians.
Annie: “Jill you are sounding every bit as partisan as you seem to be saying I am.”
Wrong.
In the five or six years I’ve been here, Jill has been here. And in all that time I have never seen her take a partisan stand.
Jill is a formalist to a fault.
Impeach Obama. Tyrant.
Annie, here is my comment from 5:16. Would you please explain how it is partisan so I may directly address your concerns? Thanks!
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?
Jill, your 5:16 comment.
Annie, here is my comment from 5:38. Please explain how it is partisan so I can address your concerns:
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?
Jill, your 5:38 comment.
Annie,
I just said Cheney and Bush should be held to account in a court of law. I also believe Obama should be held to account in a court of law. Being disappointed that Obama didn’t hold the prior presidents to account is great, but I still haven’t seen you say Obama should be held to account in a court of law. Why not?
If you believe you are operating legally, it is hard to prove to a jury that what you did is illegal. However, Obama has less wiggle room then Bush or Cheney.
Annie,
How am I sounding partisan? Would you please give a quote from what I said that sounds partisan to you? I would address that if you would show me how I was being partisan.
Thanks!
Yeah SWM, I noticed, lol.
Jill you are sounding every bit as partisan as you seem to be saying I am. I think we are at an impasse here.
Annie, Many tea party operatives around. Some fly under cover.
SWM –
So, are you planning to narc them out to the IRS, SWM?
Jill, one of the very first huge disappintments of Obama voters was that his administration decided not to go after Bush Cheney. Perhaps you missed the other times I’ve said this very same thing here on the Turley blog. I’m not sure want you want me to say regarding Obama, you don’t seem willing to say the same about Bush, why is that?