Obama headed for a smack down by the Supreme Court

Yesterday the Supreme Court heard oral arguments in the first case that could – and probably will – limit the President’s use of executive power. This case, Noel Canning, seeks to overturn the use of “recess appointments” by a President. Specifically, President Obama made appointments to the National Labor Relations Board when the Senate was technically in session.

The NLRB then made a number of contentious decisions, one of which impacted an Oregon firm, Noel Canning. They brought suit against the NLRB, in effect saying that the Board didn’t have a legal quorum because the President’s appointments were unconstitutional.

Recess appointments have been used frequently in recent years to appoint people who the Senate has blocked. There is a specific clause in the Constitution allowing for a President to make a recess appointment, but it was designed for times when the Senate could be out of session for months at a time because the mode of travel to Washington was horse and buggy.

Most recently, George W Bush used recess appointments to skirt the Democratic controlled Senate to appoint John Bolton as our UN Ambassador after a contentious battle in the Senate. Harry Reid came up the scheme of effectively shuttering the Senate but remaining technically “in session” by convening the Senate every three days during breaks. No business was done but the Senate was technically “in session”.

It’s worthwhile noting that GWB stopped making recess appointments when the Senate began that practice.

When Obama made his NLRB appointments the Senate was in session following this practice, so Obama deviated from the recess appointment practice of his predecessor. That is an important point to remember because Democrats are screaming that Obama should be able to make any appointments he wants because “Bush did it!” when in fact Bush did not.

We’re looking for something like a 7-2 decision against the President.

It’s worth noting that the suit was brought by a private firm and not by the Senate Republicans. Heaven forbid Mitch McConnell, John McCain, Lindsay Graham and the old boys and girls club that is the US Senate should hurt anyone’s feelings by pointing out that this President routinely takes liberties with the Constitution.

If you’re tired of watching Republicans cave on a regular basis, you can help make an important change by supporting Matt Bevin, a great conservative alternative to Mitch McConnell in the Kentucky Republican Primary. Give up a couple of Starbucks and turn that cash into “BevinBucks”. Let’s take the Senate back in a big way.

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  • jim_m

    Historically, the SCOTUS has ruled that the Senate or House determines whether or not they are in session and if they say they are, then they are and the Executive cannot claim otherwise. However, with the political appointments that obama has made I am not counting on them not backing him.

    • Even Stephen Bryer was asking hard questions in Oral Arguments…

    • Michael Becker

      Good point jim, but I’ve read that even Kagen was grilling the Govt. I’m looking for 7-2…

  • What’s really needed is an amendment to eliminate recess appointments altogether. The device is a throwback to a bygone era when travel times were limited by horse and carriage over dirt roads. Today, recess appointments are nothing but extra leverage for an Executive branch that has reached dangerously tyrannical proportions.

    • Retired military

      I am sure that ruth buzzi Ginsberg will back Obama 100%

  • GarandFan

    Obama will tell you “It’s GOOD to be The King!”

  • Lawrence Westlake

    The word moot immediately comes to mind, or at least de facto moot, although this blog post itself speaks volumes about the ridiculous demographics of the putative conservative chattering classes, at least on the Internet. The vacancies after the ’12 election cycle were filled by actual vote. Todd Akin and Richard Mourdock would not be able to figure out the irony. Obama since this case was a critical case then obtained de facto carte blanche to fill agency vacancies, including the NLRB. Sharron Angle and Christine O’Donnell both would be confused by that development. And of course no matter what Jan. 2017 won’t arrive any sooner. Ultimately the SCOTUS’s decision here could technically invalidate a number of NLRB rulings, which itself might require further litigation, all the way back to the SCOTUS, but in any event over the next three years Obama’s NLRB if necessary simply will figure out ways to issue anew the same rulings. Staying home with your head firmly ensconced up your arse and not voting has severe consequences in the real world, albeit not all too much on golf courses at country clubs. Keep that all in mind when Nov. 2016 rolls around.

    • JayWills

      This brings the word “disjointed” to mind.