The Awful Recess Appointment Ruling
Right-wing judicial activism has been ascendant in recent years. Five years ago, in the case of District of Columbia v. Heller, the Supreme Court, rewrote decades of Second Amendment jurisprudence to thwart local legislators who passed gun control laws. Three years ago, in Citizens United, a majority of the Justices overturned decades of precedent to deregulate modern campaign financing. But even these decisions, and others like them, pale beside last week’s extravagant act of judicial hubris by the United States Court of Appeals for the D.C. Circuit. There, in Canning v. National Labor Relations Board, three federal judges revealed themselves as Republican National Committeemen in robes.
The facts of the case were straightforward. The N.L.R.B. is supposed to have five members, and it cannot act without a quorum of three. After Republicans in the Senate obstructed the nominations of President Obama’s three nominees to the board (a fact not mentioned, revealingly enough, in the opinion), the President made so-called recess appointments to fill the vacancies.
Recess appointments, which are specifically authorized in the Constitution, have been facts of political life for decades. When faced with senators’ refusals to act on nominations Presidents simply made appointments while the Senate was not in session. There was some political controversy about whether they should exercise this power, but no legal challenge to their right to do so.
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The D.C. Circuit nevertheless found that Obama’s appointment of the three N.L.R.B. members was invalid. According to the court’s tortured reasoning, the Senate was not really “in recess” when the three were named. Indeed, the opinion essentially said that the Senate need almost never be in recess; a handful of senators could create “pro-forma” sessions that would trump any President’s ability to make appointments. Even beyond that, the opinion more or less removed the President’s ability to use recess appointments in all but a small handful of cases, suggesting that the vacancies would have to occur, not just remain unfilled, during recesses. The appointments of not only the N.L.R.B. commissioners but also of Cordray, and all of the actions of his new organization, are now in clear jeopardy.
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The decision matters because it is a huge gift to the contemporary Republican Party—especially to Republican senators. Senate Republicans have engaged in an unprecedented level of obstruction of President Obama’s nominations—to executive-branch positions, to independent agencies, and especially to federal judgeships. Recess appointments have given Obama a small degree of leverage to fight back. Characteristically, he hasn’t used this power much, especially compared with his predecessors; Obama has tried to negotiate his way out of the problem, with little to show for it. But the D.C. Circuit decision, if it stands, essentially gives veto power to Senate Republicans. If they simply refuse to act on Obama’s appointments, he is now powerless to respond. The opinion also said that any action taken by improper recess appointees would be invalid. So the opinion could paralyze a major chunk of the federal government. Filibusters by senators who don’t approve of the United Nations could prevent us from having any ambassador at all; indeed, these senators could theoretically leave a President without any cabinet members at all.
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Read more: http://www.newyorker.com/online/blogs/comment/2013/01/the-awful-recess-appointment-ruling-in-canning-v-national-labor-relations-board.html#ixzz2JNaqFqB0
Oh, but they whine about judicial activisim 24/7 in every other case.
Hypocritical Morans!
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