A Quick Reaction to the NLRB Ruling


Supreme_Court_US_2010I think the decision today in NLRB v. Noel Canning is correct. It brushes back Obama’s unprecedented stretching of executive authority to appoint lower officials without the Senate, but it preserve the more traditional power for the next President. The whole affair puts on display President Obama’s abuse of presidential power for small-ball politics. Previous presidents have claimed expansive powers in the face of great emergencies, whether it be the Civil War, the Great Depression and the rise of fascism, the Cold War, or the 9-11 attacks. Obama risked the executive power built by generations of presidents just to win a few pro-union decisions on the NLRB.

It is clear that Justice Scalia has the better reading of the original Constitution. He and the conservative justices Thomas, Alito, and Chief Justice Roberts, would have held that the President cannot make appointments except for vacancies that arise between the first session of Congress and the second session of Congress, which generally matches the first and second years between House elections. That is the better reading of the constitutional text. If Scalia had been able to attract the swing vote of Justice Kennedy, he would have succeeded — ironically, given his long support for a robust executive — in permanently restricting presidential power.

Instead, the majority — Justice Breyer writing — upheld a long historical practice of Presidents filling vacancies, even those that occur when the Senate is in session. The majority found that Senates have long allowed Presidents to fill vacancies during recesses that are as short as 10 days. But the Court rejected Obama’s unprecedented claim that he could use this power even when the Senate was currently meeting. Obama made the dangerous argument that he could decide when the Senate was really conducting business or not — a claim foreclosed by the Constitution, which gives to Congress the sole power over its own proceedings. This was a bridge too far for every member of the Court, liberal or conservative.

Breyer and the majority of the Court have rebuked President Obama, but at the same time have preserved the ability of future Presidents to use the traditional power. Two years from now, a President Hillary Clinton or a President Ted Cruz will be grateful for the Court’s decision today, as are all who support a vigorous executive, but one limited to its proper duties and responsibilities.

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  1. genferei Member

    How long does a “long historical practice” have to be before it trumps the plain meaning of the constitution? Is 1979 – yes, that’s nineteen seventy-nine – early enough?

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  2. genferei Member

    By the way, the action on this is taking place over on the Member Feed* with Unanimous Split.

    * When do the links get updated to say “Main Feed” instead of “Home”?

    • #2
  3. Albert Arthur Coolidge
    Albert Arthur

    Check out NBC News‘s ridiculously biased write-up:

    The US Supreme Court today limited a president’s power to make recess appointments when the White House and the Senate are controlled by opposite parties, scaling back a presidential authority as old as the republic.

    The case arose from a political dispute between President Obama and Senate Republicans, who claimed he had no authority to put three people on the National Labor Relations Board in January 2012 when the Senate was out of town.

    He used a president’s power, granted by the Constitution, to “fill up all vacancies that may happen during the recess of the Senate.” But the Republicans said the Senate was not in recess at the time the appointments were made, because every three days a senator went into the chamber, gaveled it to order, and then immediately called a recess.

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  4. Pilli Inactive

    Does this ruling make any decisions by Obama’s NLRB moot?

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  5. PJ Inactive

    I think we need a special rule for 9-0 decisions like this, where the administration (or whoever the losing party is) was just so completely wrong they can’t even get the justices who are normally sympathetic with them to agree. 

    Like, the winning party should get to smack the loser upside the head.  Just one good whack for wasting everyone’s time.

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  6. Little Ricky Cobden Inactive
    Little Ricky Cobden


    I think we need a special rule for 9-0 decisions like this, where the administration (or whoever the losing party is) was just so completely wrong they can’t even get the justices who are normally sympathetic with them to agree.

    Like, the winning party should get to smack the loser upside the head. Just one good whack for wasting everyone’s time.

     A good precedent would be to publicly cane a President who so recklessly abuses his power. In addition if the President is a lawyer as is common, he should lose his license to practice. If he is a Constitutional scholar he should be tarred and feathered and run out of the beltway on a rail.

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  7. The King Prawn Inactive
    The King Prawn

    This now makes pro forma sessions in the Senate for every Congress. The Constitution was easier.

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  8. TeeJaw Inactive

    Bank robbery has a long historical practice in America.

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