Opinion
A woman uses her mobile phone at the plaza of the U.S. Supreme Court in Washington June 25, 2014.  REUTERS/Gary Cameron    A woman uses her mobile phone at the plaza of the U.S. Supreme Court in Washington June 25, 2014. REUTERS/Gary Cameron   

What NLRB v. Canning Really Means: Sue, Sue Again, And Keep Suing

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Nick Dranias
Constitutional Policy Director, Goldwater Institute
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      Nick Dranias

      Nick Dranias is Director of Policy Development and Constitutional Government at the Goldwater Institute. Dranias led the Institute’s successful challenge to Arizona’s system of government campaign financing to the U.S. Supreme Court. Using an emergency motion invoking the archaic All Writs Act, Dranias was able to persuade the Court to block campaign subsidies from being paid to government-funded candidates during the 2010 election cycle. Dranias also serves as a constitutional scholar. He has authored scholarly articles dealing with a wide spectrum of issues in constitutional and regulatory policy. His articles have been published by leading law reviews, bar journals and think tanks across the country. Dranias’ latest works are (with Byron Schlomach) Recognizing Pension Fund Insolvency: A Catalyst for Reform and (with Andrew Kleit) Moving Forward: A Roadmap for Choice and Competition. Dranias also serves on the board of Compact for America, Inc., which is urging the states to advance a Balanced Budget Amendment using an interstate compact.

A Supreme Court that so often dodges political controversy just lit a fuse that must lead to an explosion of constitutional litigation if our republic is to be saved. The ignition source is the majority opinion in NRLB v. Canning. On the surface, the Court struck down appointments made by President Obama to the federal agency that oversees unions. But beneath the surface, the majority opinion laid the groundwork for constitutionalizing naked power grabs by the executive branch.

According to Justice Breyer’s majority opinion, President Obama had authority to appoint executive officials to the NLRB during intra-session recesses because that is what presidents have always done with little or no objection from Congress. The majority struck down President Obama’s NLRB appointees only because a brief intra-session recess of 10 or fewer days was deemed “too short” to justify presidential evasion of senatorial advice and consent. In essence, Breyer’s majority opinion declares that if the president asserts the power to do something and gets away with it, then the power grab will be deemed constitutional — provided it survives a judicial gut check.

Of course, the majority proclaims its analysis is limited to circumstances in which the meaning of constitutional text is otherwise “ambiguous.” But the opinion makes it clear that an “ambiguity” will be found whenever a constitutional provision does not, standing alone, dictate a specific result — which is nearly always the case in the kind of constitutional litigation that reaches the Supreme Court. In practical effect, Canning allows historically unopposed executive overreach to redefine nearly every provision of the Constitution — so long as a Supreme Court majority does not feel too queasy about looking the other way.

Thus, in a decision that appears to limit executive power while actually vastly increasing it, Justice Breyer’s majority opinion adopted what Justice Scalia termed in his concurrence an “adverse possession theory of executive authority.”

As such, Canning casts the Obama administration’s executive overreach in an entirely new light. No longer is the president a mere rogue for expanding warrantless NSA surveillance of American citizens, re-writing the federal health care law, disregarding immigration law, and exchanging prisoners of war without congressional notification. Under Canning, such actions, if unopposed, will slowly but surely redefine the very essence of executive power as a matter of constitutional law.

Lawsuits brought against the Obama administration by Senator Rand Paul, Speaker John Boehner, and State Attorneys General can no longer be viewed as political grandstanding, if they ever were. Under the adverse possession theory of executive power embraced by the majority in Canning, such actions represent nothing short of institutional self-preservation.

Indeed, it is incumbent upon Congress, the States, and public interest groups to resist executive overreach with a renewed fervor. And it does not matter that many of these lawsuits will face procedural hurdles and dismissal on technical grounds. With the risk of imperial presidency growing exponentially, we must never again give an honest jurist the opportunity to shrink from enforcing our Constitution as written because no one cared to enforce it.

Nick Dranias is the Goldwater Institute’s Director for Constitutional Policy.