The case heard on January 13 at the Supreme Court (National Labor Relations Board v. Noel Canning) may not have the sensational appeal that the mainstream media loves, but the implications of this decision will have enormous consequences for our Republic. And not because of what you will hear from the left-leaning media, which has been crying (erroneously, I might add) about the many decisions that could be “invalidated” by a decision against President Obama; the reason is much deeper than that.
But first, the facts. Article II, section 2, clause 2 of the U.S. Constitution gives the president the power to nominate certain key positions “with the advice and consent of the senate.” Article II, section 2, clause 3 gives the president the power to temporarily “fill up Vacancies that may happen during the Recess of the Senate.” Ordinarily, the Senate itself determines when it is going to recess (sometimes needing the approval of the House). For a long time, under presidents of both parties, senators have kept the senate open with pro forma sessions (that is for formalities purposes only, even though no business will be conducted) when they are not supportive of certain nominations, preventing the president from bypassing the Senate’s “advice and consent” role and appointing officers during the Senate’s recess.
Consistent with the Framers’ idea of a separation of powers, the purpose of these provisions is to force our elected officials to come together and compromise to reach agreements that are most favorable for “we the people.” But as with so many other things, President Obama has been unable to work within his constitutional limitations and has, therefore, chosen to challenge this practice by making three “recess appointments” to the National Labor Relations Board while the Senate was just holding pro forma sessions.
At issue in this case are questions like whether it matters when the vacancy “happens” and what a “recess” is, but something amazing happened at oral arguments on Monday. Justice Antonin Scalia asked U.S. Solicitor General Donald Virelli a very revealing question, and the answer explains a lot about the actions of President Obama and his radical operatives.
JUSTICE SCALIA: What do you do when there is a practice that — that flatly contradicts a clear text of the Constitution? Which — which of the two prevails?
GENERAL VERRILLI: Now, I think the practice has to prevail, Your Honor …
Knowing how preposterous his answer was, General Verrilli wouldn’t dare repeat it, though he was pressed several times, just saying instead, “I think I’ve already answered that.” You see, the Constitution doesn’t carry much weight with President Obama and other radical liberals, when compared to what “must be done.” Even if there were no dispute with the language, they still believe other considerations are more important. In essence, he argues that if a provision gets violated enough for good reasons, then the new practice of violating the Constitution becomes what the Constitutions says.
If your head is about to explode, don’t worry; you are not alone.
Justice Samuel Alito focused on the essence of the president’s argument: when things don’t go President Obama’s way, the Constitution should allow him to make things go his way.
JUSTICE ALITO: But you are making a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not. You’re just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the President must be able to fill those — fill those positions. That’s what you’re arguing. I don’t see what that has to do with whether the Senate is in session.
GENERAL VERRILLI: Well, I do — I think this — I think the recess power may now act as a safety valve given that intransigence …
The intransigency he talks about is the Senate’s disapproval of the president’s nominees. How can anyone disagree with President Obama? That’s unconstitutional! It’s right there after the constitutional right to abortion and same-sex “marriage”.
Chief Justice Roberts reminded General Verrilli that the Senate has “an absolute right not to confirm nominees that the president submits.” And even Justice Stephen Breyer was skeptical of President Obama’s plea.
JUSTICE BREYER: I can’t find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the president. To the contrary, Hamilton says that the way we’re going to appoint people in this country is Congress and the president have to agree. Now, that’s a political problem, not a constitutional problem, that agreement. … So, what have I missed? Where is it in the history of this clause, in its origination, that it has as a purpose to allow the president to try to overcome political disagreement?
GENERAL VERRILLI: I don’t — I don’t think that that’s — I don’t think that that — I don’t think that’s its purpose, but it is in the Constitution. The president has the authority to make appointments …
You have to have a bit of sympathy for General Verrilli; he’s routinely sent to make some fantastical arguments (see here) to the Court. The Chief Justice highlighted one of them:
CHIEF JUSTICE ROBERTS: Your — it’s your argument — your friend on the other side says one flaw with your argument is that it makes the words “it may happen” or “happen during” superfluous, that the clause would mean exactly what you say it means if you took those words out. And your response, the only one I could see on the reply — your reply brief, page 13, is that those words were put in there to quote, “Confine the president to filling vacancies that actually exist at the time of appointment.” Now, is that — did you really think that they put that language in there because they were afraid the president would fill appointments that don’t exist?
GENERAL VERRILLI: I don’t know why they put the language in there, Mr. Chief Justice…
Then why argue it?
Attorney Noel Francisco on behalf of the Respondent and Miguel Estrada for the Senate Republican Leader Mitch McConnell presented a solid case that gave the proper perspective to the Court.
MR. FRANCISCO: The political branches of the government have no authority to give or take away the structural protections of the Constitution. They don’t exist to protect the Senate from the President or the President from the Senate. These are liberty-protecting provisions that protect the people from the government as a whole. So if the Constitution is quite clear as to what those structural protections are, but the political branches, assuming for the sake of argument, have conspired to deplete them, that is illegitimate, and it should be rejected by this Court.
MR. ESTRADA: It is a complete abuse of the process. It is being used for no other purpose than to overcome the Senate opposition or the Senate disinclination to agree with the president’s nominations. What the Framers contemplated in coming up with a joint power of appointment was you have to act jointly. You have to play nice. And in a country of 300 million people, when the president wants a nominee and the Senate does not agree, it is always possible for the president to come up with another nominee who is even more qualified and acceptable to the Senate. The key here is acceptable to the Senate. He has to be able to proffer someone to the Senate that the Senate is willing to engage in a joint power of appointment for.
We hope the Supreme Court heeds that sound argument. The two major objections from the others side where: (1) “but you will be overturning all the actions these appointees made,” the one the media loves and (2) “but you will really be writing the recess appointment power out of the Constitution.
This last one assumes we will never have someone Congress can trust in the White House. The fact that this president has been so polarizing does not mean they all have to behave in a similar fashion. Presidents are supposed to work with Congress to reach agreements, and if we get someone willing to negotiate, the Senate will see no problem taking a recess.
The first objection to the decisions made by these unconstitutional appointees can be rectified very easily by affirming the decisions. The argument was not even addressed much at oral arguments after Justice Scalia put a halt to it very early: “You don’t really think we’re going to go back and rip out every decision made.”
Of course not. But that’s not the point. The point is Obama must get his way. And if that means circumventing and undermining the Constitution, so be it.
Oral arguments did not go well for the government. The decision should be 9-0 against the president’s overreach. But, as the ObamaCare case taught us, you never know what the Justices might do. So stay tuned.
Click here for audio of oral arguments now available at the Supreme Court’s website.
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