Supreme Court Unanimously Rules Against Obama Administration–Twice!

Posted on June 26, 2014 by

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President Barack Obama seems intent on pushing the boundaries of executive power. The Supreme Court, at least for today, has said ‘enough.’

Two cases handed down on Thursday highlight the breach between the Court and the President. In NLRB v. Canning, the issue seems rather abstract.  The President appoints a host of people, but many of those must be made with the “advice and consent” of the U.S. Senate. What if the Senate is not in session and a vacancy exists? In Article 2, Section 2, the Constitution says:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The President can make temporary appointments, then, while the Senate is in recess. But when, exactly, is the Senate in recess? This is the question at the heart of Canning. Sometimes, in order to prevent the President from making such appointments, the Senate stays in “session” by conducting only minimal business. In order to push through controversial selections for the National Labor Relations Board, selections that would have met stiff resistance from the Senate, Obama appointed them without consent, claiming the Senate was not in session, even though the Senate made it clear that it was in session.

The Supreme Court, thankfully, determined that the U.S. Senate, and not the President, gets to determine when the Senate is in session.

This may seem odd, or even minor, but the Constitution requires the President to get the Senate’s confirmation for such positions to limit the President’s power. The President cannot choose whoever he wishes to execute the law. For key posts, those who execute must be approved by others. The National Labor Relations Board, for example, the root of this case, is a key player in employee/employer relations. If people, or unions, are convinced that they are being treated illegally, they can file complaints or bring suits to the NLRB. The entity has a significant amount of power, so Senate confirmation is not just a formality, but a way to keep fringe elements, or unsuitable individuals, from key government posts.

In McCullen v. Coakley, the Supreme Court looked at a Massachusetts law that created 35 foot “buffer zones” around abortion clinics. Unless conducting business with the clinic, no one would be allowed within the zones. The law was designed to limit abortion protestors who sought to engage clients as they entered and existed the clinics. Other statutes, of course, already made truly dangerous or harmful activity illegal–harassment, assault, or disturbance of the peace, for instance. This statute, clearly, sought to reduce political speech. The Obama Administration supported the Massachusetts law.

Unanimously, the Supreme Court disagreed.

As John Fund notes, the Supreme Court has unanimously ruled against the administration on 13 recent occasions. This is especially interesting because not even Obama’s own appointments, Justices Kagan and Sotomayor, have seen fit to support the President who appointed them to their posts. This, as Fund says, suggests the radical nature of Obama’s arguments before the Court.

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