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
Paul, ask Bob.
Paul, JT has written about the laws broken by Bush and Cheney as has Glenn Greenwald. A Republican, Bruce Fein, has also written on the issue. Torture is a war crime as is starting a war of aggression.
Since Bush/Cheney have Congressional and UN coverage for their war of aggression, that takes Iraqi Freedom off the table. Torture is what is the definition of the word is thingie. They have coverage, just as Obama does with his drone attacks, with a legal memo on the waterboarding not being torture. So… what else have you got?
Bob, your 6:33 is a total mischaracterization of my stance. How wrong can you possibly be? No wonder this country is so messed up.
Jill,
Your reputation for objectivity remains untarnished.
And I’m going back to the Patty C. days.
Bush will ALWAYS be brought up in any conversation about Obama wrongdoing Paul. How naive are you? Or how naive do you think Democrats are?
Annie,
Your entire message regarding Bush is “if Bush did it and got away with it then Obama should get away with it too.”
That’s not an argument; that’s a temper tantrum.
Annie, In this list of comments alone I have consistently held that Bush and Cheney should be held accountable for their crimes. How is that fighting any mention of Bush wrongdoing? You have to explain your claim, not just make one. I don’t have any issue with saying they both committed war crimes.
I have not seen you once in this thread say that you believe Obama should be held to account for his crimes. If you did say that in other, prior posts, then why not say it clearly now?
Jill: “Bob, I don’t think it’s possible to be too alarmist about what is happening to our society.”
Jill,
Remaining acutely aware of all the law breaking going on, as you do, tends to make one feel like Bugs Bunny in “Falling Hare” (“Eeeh, aaah, oooh, etc.”)
See Bugs reaction at the 7:41 mark for details:
Jill, you fight against any mention of Bush wrongdoing, every single time it’s brought up. That makes me suspect you. You seem to assume that because I brought up Bush’s wrongdoing I give Obama a pass. That is an assumption on your part, you are too quick to jump to that conclusion and you have done so several times over the past 6 months or so I’ve been commenting on this blog.
Presidential lawlessness is a terrible thing for our society. I just cannot understand failing to oppose it. That the SC actually, for a change, stood up and put some kind of limit on this lawlessness is a good. It is a reason to hope that things might get better.
If President A is a pedophile but commits no acts of pedophia during office, but President B does, should both be prosecuted for the acts of President B? Or should President B be let off the hook be because President A did not commit the same crimes?
Samantha is someone here saying either President should get a pass? Someone here is using hyperbole.
Annie – specifically which laws did Bush break?
Annie, In what way do I not sound like a Green?
I am for universal, national healtcare. I am for alternative energy. I am for a living wage for every person. I am for environmental clean up. I am pro choice. I am for ending warfare. I am for ending the surveillance state. I am for the return of the rule of law. I am for universal, high quality food, education and housing. I am against the prison state. These (and other progressive stances) are all positions I have taken publicly many times on this blog. Now, how is it that I don’t sound like a Green?
Annie, The memo in 2010 was to talk democrats into staying home because the democratic candidates were not pure and thereby enable a tea party victory. You know it worked much better than actually advocating for a tea party candidate in some venues.
Someone needs a little perspective here. If a president is a pedophile, should he get a free pass just because his predecessor was a pedophile with a free pass? Someone here obviously thinks so.
Jill if you are Green you certainly don’t sound like one. I voted for Jill Stein in 2012, BTW.
Well Bob, I do get to call her a partisan, especially after she consistently emphasizes my partisanship, which I admit to. YOU and she get to disagree, that’s the First Amendment for ya.
SMM, If you say I spoke favorably of Eric Erickson, you do need to show that quote.
Now, after trying to smear me with a lie, I will address Annie’s concerns.
Annie, I have said over and over that Bush and Cheney should be held accountable for their crimes. Obama and Biden are, factually, leaders in your party. I’m a Green. If leaders in my party break the law, I should hold them to account. Every citizen, Republican, Democratic, Tea Party, Green, Socialist–, every citizen must hold their own party to account. That is the role of a citizen, to hold one’s own and all “leaders” to account for their actions.
Bob, I don’t think it’s possible to be too alarmist about what is happening to our society. But thanks for pointing out that I have been consistent, something a cursory look through the archives will indeed show!
Annie,
I’m sorry, but you don’t get to call Jill partisan simply because she’s not currently bashing Bush for you.
And use of the phrase “members of your party” is completely appropriate when addressing someone who always favors the democrats in her posts.
What I find interesting SWM, is why so many Tea People and libertarians fly under the radar and attempt to pass themselves off as non partisan. I find it very dishonest.
Annie – Bush is not the topic of discussion. In any criminal case your defense cannot be, but the other guy did it, too, so give me a pass.
BTW, who or what are the Tea People?