SCOTUS reviews recess appointments in arguments today

posted at 10:01 am on January 13, 2014 by Ed Morrissey

The Supreme Court might have a light workload this year, but not today.  It will hear oral arguments in two key cases [see update below], both of which might have long-lasting impact on politics, and one which has significant reach on First Amendment speech rights in the public square.  The headliner today will be the arguments over the recess appointments made by Barack Obama to the NLRB while the Senate considered itself in session — a case which lower courts used to drastically shrink recess-appointment power:

Nothing less than the boundaries of executive power are at stake Monday as the Supreme Court considers whether President Obama violated the Constitution during his first term.

Oral arguments slated for Monday will center on a trio of recess appointments to the National Labor Relations Board (NLRB) that were deemed unconstitutional by lower courts.

If they uphold the decision, experts say the justices could endanger hundreds of NLRB decisions.

Even more significant are the ramifications for future presidents, with the court poised either to bolster or blunt the chief executive’s appointment powers.

“Rulings like this have implications that last for centuries,” said Michael Lotito, an employment and labor attorney and co-chairman of Littler Mendelson’s Workplace Policy Institute.

That’s why the legislative and executive branches usually find ways to compromise without letting the judiciary weigh in on these fights.  The decisions will force one or the other into a worse position than before, and it’s usually a toss-up as to how it will finish. In this case, though, expect the Supreme Court to be deeply skeptical about the executive branch’s authority to determine what constitutes a legitimate session of the Senate.  They are going to note that the branches are co-equal, which means the White House can’t set rules for Capitol Hill (and vice versa, outside of statutory law signed by the President).

One appeals court went farther than that, ruling almost exactly a year ago that the Constitutional recess appointment power only applies in formal recesses, not breaks within sessions of Congress.  That would strip the Presidency of nearly all power to make recess appointments, which would be a huge blow … if the Senate hadn’t weakened the filibuster recently in regard to executive-branch appointments. Now a mere majority is all a President needs to get appointments confirmed, which means that Obama probably won’t need to make much use of the recess power anyway. At least, not unless Republicans take control of the Senate after the midterm elections.

The other case for oral arguments today this week that won’t get as much attention will be the issue of “buffer zones” around abortion clinics to keep protesters away.  This restricts pro-life activists in some states (Massachusetts in this case) from blocking access for activists to public property in the name of safety:

These protective zones arose after a spate of intense confrontations and violence in and around abortion facilities in the 1990s. The Supreme Court upheld federal and state laws restricting some speech around women’s health centers for the sake of safety and order. But opponents say the Massachusetts law has gone too far because it doesn’t treat speech for or against abortion in the same way. Proponents of the state law, including the Obama administration, say treatment is equal and that it’s necessary to make sure clinic patients and staff are safe.

The case, McCullen v. Coakley, is brought by Eleanor McCullen, a 76-year-old woman who stands outside the Boston Planned Parenthood clinic on Tuesdays and Wednesdays to try to dissuade women from obtaining abortions. She says she’s personally spent more than $50,000 on her effort, including buying baby supplies and paying electric bills or rent for women she meets outside the clinic. She and others who filed the suit say “hundreds of women” accepted their offers of help over the years, before the buffer zone law went into effect.

McCullen and others say the buffer zone — a line painted on the sidewalk at the 35-foot mark — has severely limited their constitutional right to conduct what they call “sidewalk counseling.”

The Massachusetts law set up the 35-foot zone around abortion clinics. The only people who can enter are those going to and from the clinic, passersby and employees of the clinic and their “agents” conducting official business.

That last exemption, McCullen’s lawyers say, allows Planned Parenthood employees and escorts to operate within the buffer zone but denies access to the protesters. That unequal prohibition on speech, they say, is unconstitutional.

This probably won’t overturn the 2007 decision that allowed these buffer zones, but it may make them so complicated to implement that states will do away with them. It will be interesting to see the result here, to see whether pro-life speech is somehow less protected than pro-abortion speech.

Update: I misread the Politico article; the Massachusetts case will be heard on Wednesday. Thanks to Gabriel Malor for the correction.


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It will be interesting to see the result here, to see whether pro-life speech is somehow less protected than pro-abortion speech.

Where is the equivalence? The case doesn’t say anything about “pro-abortion” speech and it’s protection. You already noted that the case is about “blocking access for activists to public property in the name of safety”, but I’m guessing you had to find a way to plug “pro-abortion” somewhere in the article.

segasagez on January 13, 2014 at 10:08 AM

it’s necessary to make sure clinic patients and staff are safe

Considering there’s at least one human death per abortion, I’d say there’s nothing safe about it.

dominigan on January 13, 2014 at 10:09 AM

Roberts will side with Obama again methinks

cmsinaz on January 13, 2014 at 10:16 AM

Dog Eater will appoint himself Chief Chief Justice and his vote will be worth 10.

So what if the SC finds his appointments faulty, Bark doesn’t give a crap about the law.

Bishop on January 13, 2014 at 10:23 AM

segasagez on January 13, 2014 at 10:08 AM

Under the law, the clinic’s “agents” *are* allowed in the buffer zone. That means they have a more equal right to speech within the buffer zone than the pro-life activists. So… try again.

GWB on January 13, 2014 at 10:25 AM

Roberts will side with Obama again methinks

cmsinaz on January 13, 2014 at 10:16 AM

If so, then it will confirm the selfie of Roberts and a goat or something. One unexplicable ruling doesn’t necessarily mean a bought judge but more than one- that begins to reek.

Happy Nomad on January 13, 2014 at 10:26 AM

Dog Eater will appoint himself Chief Chief Justice and his vote will be worth 10.

So what if the SC finds his appointments faulty, Bark doesn’t give a crap about the law.

Bishop on January 13, 2014 at 10:23 AM

With the added fun that the Senate pretty much greenlighted uncritical and unquestioned confirmation of whatever radical critter gets nominated by the lazy stupid bastard.

Happy Nomad on January 13, 2014 at 10:29 AM

Until this story gets knocked down, we get side-by-side facepalms!

thebrokenrattle on January 13, 2014 at 10:36 AM

Well, that didn’t take long!

thebrokenrattle on January 13, 2014 at 10:49 AM

Yup HN

cmsinaz on January 13, 2014 at 10:50 AM

Dog Eater will appoint himself Chief Chief Justice and his vote will be worth 10.

So what if the SC finds his appointments faulty, Bark doesn’t give a crap about the law.

Bishop on January 13, 2014 at 10:23 AM

Yup and when he ignores them Congress will do nothing. We no longer have a government with balance. Both of the other branches have handed over their duties to BO and the people cheer in the streets. We may not be able to stop the fall to an oppressive banana republic because the majority of our fellow citizens very badly want it.

Dr. Frank Enstine on January 13, 2014 at 10:57 AM

And yet another chance for Justice Roberts to create imaginary laws, stretch the boundaries of common sense, perform incomprehensible legal gymnastics and generally increase our distrust of the unelected judiciary Fifth Column.

Marcus Traianus on January 13, 2014 at 11:04 AM

Hey! In other news SCOTUS cleared the way so AZ can continue killing babies after week 20.

Happy Nomad on January 13, 2014 at 11:06 AM

Why do we need buffer zones around abortion clinics, since SCOTUS decided it was okay in Arizona to abort 20 week fetuses why not just ban protests outright?

Cindy Munford on January 13, 2014 at 11:08 AM

Roberts will side with Obama again methinks

cmsinaz on January 13, 2014 at 10:16 AM

I would be extremely surprised if more than 2 SCOTUS justices sided with the Administration regarding their vapid argument justifying their recess appointments. The precedent this would set, as well as effectively striping the Senate of it’s Constitutional ‘advice and consent’ powers, would set us even more on a path towards a totalitarian Presidency.

I also don’t think that Roberts would side with the Administration in this one. He’s made it clear that one of the major factors in any decision he makes is the impact of that decision on his personal legacy – down to changing his vote on the ACA so that he would not be seen as the one person who scuttled the President’s EpicClusterFarkNado at the 11th hour.

Signing off on a massive expansion of Presidential power at the expense of Congressional powers would be a massive mistake – one larger than his ACA mistake.

Athos on January 13, 2014 at 11:25 AM

The tyro tyrant gets tested.

Fail.

profitsbeard on January 13, 2014 at 11:52 AM

Where is the equivalence? The case doesn’t say anything about “pro-abortion” speech and it’s protection. You already noted that the case is about “blocking access for activists to public property in the name of safety”, but I’m guessing you had to find a way to plug “pro-abortion” somewhere in the article.

segasagez on January 13, 2014 at 10:08 AM

It’s quite obvious that those employees and escourts are speaking to the women being escorted in, and they are not counseling them to not have the abortion.

unclesmrgol on January 13, 2014 at 11:55 AM

With the recess appointment arguments happening today, is there any estimation about when a ruling would come down from SCOTUS?

Tar Heel Sooner on January 13, 2014 at 12:13 PM

Under the law, the clinic’s “agents” *are* allowed in the buffer zone. That means they have a more equal right to speech within the buffer zone than the pro-life activists. So… try again.

GWB on January 13, 2014 at 10:25 AM

They aren’t activists though. They’re employees:

This restricts pro-life activists in some states (Massachusetts in this case) from blocking access for activists to public property in the name of safety. There is a difference between an activist and an employee.

segasagez on January 13, 2014 at 12:38 PM

It’s quite obvious that those employees and escourts are speaking to the women being escorted in, and they are not counseling them to not have the abortion.

unclesmrgol on January 13, 2014 at 11:55 AM

Again, the key word is

employees

. Similarly, the Phelps clan has to stay a certain distance away from funerals, but guests attending the funerals do not. Their role at the time of the event is what dictates whether the law applies to them. Protesters have to stay a certain distance away; mourners do not.

segasagez on January 13, 2014 at 12:40 PM

segasagez on January 13, 2014 at 12:38 PM

It’s possible you’re right, except the words above mention employees AND agents. Therefore, “agents” aren’t employees.

GWB on January 13, 2014 at 12:50 PM

I’m out on this thread. The auto-start video keeps locking up my browser. Have I mentioned lately that I really, *really* hate auto-start videos? All of them? Well, I do.

GWB on January 13, 2014 at 12:54 PM

…can they declare them…a tax?

KOOLAID2 on January 13, 2014 at 1:02 PM

Sad that this has to be decided by the SCOTUS.

Schadenfreude on January 13, 2014 at 1:05 PM

It’s possible you’re right, except the words above mention employees AND agents. Therefore, “agents” aren’t employees.

GWB on January 13, 2014 at 12:50 PM

Yep, that’s the kicker. Pro-abortion counselors (not employees) are allowed on public property (sidewalk) and anti-abortion counselors are not.

cptacek on January 13, 2014 at 1:41 PM

Yep, that’s the kicker. Pro-abortion counselors (not employees) are allowed on public property (sidewalk) and anti-abortion counselors are not.

Non-employee, Pro-abortion cousenlors that hang outside clinics? You’re describing something that doesn’t exist.

segasagez on January 13, 2014 at 2:00 PM

Then what does “agent” mean?

cptacek on January 13, 2014 at 4:10 PM

Has the White House’s Chief Justice spotlight been illuminated yet? Justice Roberts, they need your help!

Nomennovum on January 13, 2014 at 5:10 PM