The Supreme Court recently heard oral arguments on National Labor Relations Board v. Noel Canning. The forthcoming decision has the potential to undermine executive power, shifting it toward the Senate.
If the court strikes down recess appointments, many Republicans who decry Obama’s aggressive and egregious use of recess appointments will celebrate.
But should they? Like the new filibuster rules in the Senate, Obama has used recess appointments to undermine hurdles that would otherwise slow or stall his agenda. But just as changes to the filibuster rules today might later come back to haunt Democrats, Republicans may live to regret the erosion of executive power — when they once again occupy the White House.
In making the ruling, the court will consider three questions, which can be summarized thusly:
1). When does the Senate go on recess? (The Constitution’s recess-appointments clause refers to “the recess” of the Senate. Does that imply it happens only once at the end of the year — or does any break constitute a “recess?”)
2). Does the vacancy have to literally occur during the recess?
3). Do pro-forma meetings held every three days (in order to game the system and avoid going on recess) constitute being “in session?”
In order to preserve the status quo, the Obama administration will have to run the tables, essentially winning all three arguments. This seems unlikely.
Should the court strike down recess appointments, it would potentially invalidate the labor board’s past rulings (at the very least, there would be lots of litigation). It might even raise questions about other recess appointments — including that of Richard Cordray to head the Consumer Financial Protection Bureau.
Those are all short-term manifestations Republicans would applaud. But the long-term ramifications would likely matter more — and that’s why this could turn out to be a hollow victory.
Granted, there are legitimate conservative constitutional arguments about preserving the Senate’s advice and consent role. But one wonders how many Republicans who are clamoring for this today will later lament the loss of executive power tomorrow — when Democrats are playing politics and blocking a Republican president’s appointments. The question is whether your primary motive is to solely to stop a man who will be out of office in a couple of years, anyway.
Obama Derangement Syndrome can have consequences.