The Obama Administration has been unscrupulous about discrediting ordinary political pushback.
Their acolytes depicted the surge of the Tea Party in 2009 as unprecedented fanaticism, rather than the grassroots mobilization that democracies encourage. The partisanship of congressional Republicans, not much different from the partisanship of Democrats during George W. Bush’s second term, has been recast as sore-loser bitterness (tinged with racism).
On a range of issues -- from entitlement reform to guns to immigration to social policy -- conventional conservatism has been branded as feverish, know-nothing extremism. Aided by a media that shares all of Obama’s sensibilities, the trick has been a cynical wonder that keeps enabling the most ideological administration in memory to claim the middle ground.
So, it is no surprise that the DC Circuit’s demonstration of a spine last week has triggered another bout of Obama’s strategy of de-legitimating opposition. The appeals court rejected three recess appointments to the National Labor Relations Board, and signaled that hundreds of regulatory rulings by the Board’s current, constitutionally flawed membership could be invalid unless the ruling ends up being set aside by the Supreme Court.
The basis for the court’s reasoning was a reasonable enough interpretation that the constitutional context of recess appointments was a limited, exigent circumstance—the possibility that Congress might be adjourned and unable to fill an executive branch vacancy –and that the same framers who carefully installed an advise and consent function for the Senate had no intention of undermining it by permitting appointments over a holiday weekend or during routine Senate breaks.
Not exactly a stunning view of checks and balances, and a ruling that will eventually inconvenience a Republican president. But the NLRB has cavalierly announced it will proceed with its rule-making despite the cloud over its validity and that the President’s compromised appointments will have full voting privileges. The Obama Administration, remarkably, has shown no eagerness to ask for an expedited Supreme Court review that might lift the uncertainty.
Of course, it is the ruling and not the defiance that has come under siege from Obama’s allies. The NLRB’s disdain for a federal appellate decision and its willingness to keep promulgating regulations that might not survive the next Supreme Court session looks like, frankly, the kind of intemperate, dead-end resistance Obama often attributes to his own adversaries.
It is also a symptom of two other things: first, an administration and a bureaucracy that can’t comprehend the economic risk of regulations that may or may not last. Second, the imperial presidency that liberals used to lament is now their fantasy of how a reelected Obama ought to govern.