Sure sounds like the Supreme Court’s going to rule against Obama on recess appointments

posted at 4:01 pm on January 13, 2014 by Allahpundit

I know, I know: Didn’t we go through this once before? SCOTUS sounded skeptical after oral arguments on ObamaCare’s individual mandate too and we all know how that turned out. We’re setting ourselves up for heartbreak. Again.

One big difference between then and now, though, is that everyone assumed a ruling against the mandate would be no better than 5-4. Obama had four liberal justices in the bag for his position, as usual; the only question was whether they could get one conservative. Per Moe Lane, the word from SCOTUSblog about this morning’s arguments is that even some of the liberals seem ready to abandon ship.

Seeming a bit troubled about allowing the Senate to have an on-off switch on the president’s power to temporarily fill vacant government posts, the Supreme Court on Monday indicated that it may yet allow just that. Even some of the Justices whose votes the government almost certainly needs to salvage an important presidential power were more than skeptical…

Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem, not a constitutional problem. Senators of both parties have used the Constitution’s recess appointment provisions to their own advantage in their “political fights,” Breyer said, but noted that he could not find anything in the history of the clause that would “allow the president to overcome Senate resistance” to nominees…

First, Justice Elena Kagan, although expressing some alarm that the country would wake up “one fine morning” and “chuck” two centuries of history of frequent presidential use of recess appointments, nevertheless said at least twice that “it was the Senate’s job to decide” when it goes out on recess, thus giving it the ability to control when, or if, the president may make such appointments…

The Solicitor General made little headway in arguing that the Constitution meant the president to have significant power to make temporary appointments, and that deferring to the Senate would, in effect, destroy that power. He seemed to startle even some of the more liberal judges when he said that, if it was a contest between historical practice and the words of the Constitution, practice should count the most.

NBC also got the sense that the Court is leaning against O. So did left-wing TPM, noting that Scalia couldn’t resist a mild dig at Obama:

Justice Antonin Scalia, as he often does, led the charge against the Obama administration’s position. He argued that the president’s use of the recess appointments to fill empty slots on the National Labor Relations Board “flatly contradicts the clear text of the Constitution.” When U.S. Solicitor General Donald Verrilli defended the decision by saying the Constitution is ambiguous on that question, Scalia retorted, “It’s been assumed to be ambiguous by self-interested presidents,” to gasps and laughs in the chamber.

Per Gabe Malor, there’s a chance that the Court could decline to rule at all on grounds that this is a political question, i.e. a dispute over powers between the executive and legislature on which the Constitution provides no meaningful guidance. Let the political process sort that out, not the courts. Two problems with that in this case, though. One: The plaintiff challenging O’s recess appointments in the NLRB case isn’t the Senate, it’s a corporation. Technically, this is a case about the executive’s power to regulate private entities by making appointments to regulatory bodies through dubious procedures. Two: Obama’s dubiously-appointed NLRB has already issued decisions and will issue more going forward. Does the Court want to leave those intact without ratifying their constitutionality despite the hotly disputed propriety of how O staffed the Board? The need for public confidence in the integrity of the Board’s rulings makes me think SCOTUS will decide one way or another. The Court’s conservatives might even relish a chance to knock O down in a matter of executive overreach at this point. As it turns out, the “political question” doctrine apparently wasn’t even raised at today’s hearing.

The decision here is, as Ed noted earlier, less important than it used to be now that Reid’s nuked the filibuster for presidential appointees, but it’ll be newly important next year if the GOP holds the majority in a narrowly divided Senate. Imagine O nominates a judge to the D.C. Circuit and, with the help of a few select Republican centrists (Collins, Kirk, etc), Minority Leader Reid manages to pull together 51 votes for confirmation. The only obstacle at that point is Mitch McConnell in refusing to bring the nomination to the floor — unless O can make these pro forma recess appointments, in which case he’ll simply wait for a pro forma Senate session and then fire away. If he can’t, he’s basically at McConnell’s mercy. If the Court rules against him here and the GOP’s odds of winning big in November start to climb this year, expect Obama to nudge anyone in a Senate-confirmable federal position to quit this year so he can fill their vacancy on favorable terms.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

It can’t be that our Constitutional professor President is wrong about this. It must be that there is some nuance (attention John Kerry) that we are all missing.

The Solicitor General made little headway in arguing that the Constitution meant the president to have significant power to make temporary appointments, and that deferring to the Senate would, in effect, destroy that power. He seemed to startle even some of the more liberal judges when he said that, if it was a contest between historical practice and the words of the Constitution, practice should count the most.

J_Crater on January 13, 2014 at 4:07 PM

Let’s go back to the HA SCOTUS divination on Obamacare. How’d that work out with Justice Roberts inventing law out of thin air to foist Democrats disaster upon the American people.

If we have learned anything, it should at least be that reading the SCOTUS tea leaves is a gamble we should not undertake.

I’ll wait for the actual ruling, thank you.

Marcus Traianus on January 13, 2014 at 4:08 PM

Scalia FTW!!

rockmom on January 13, 2014 at 4:09 PM

Justice Antonin Scalia, as he often does, led the charge against the Obama administration’s position. He argued that the president’s use of the recess appointments to fill empty slots on the National Labor Relations Board “flatly contradicts the clear text of the Constitution.” When U.S. Solicitor General Donald Verrilli defended the decision by saying the Constitution is ambiguous on that question, Scalia retorted, “It’s been assumed to be ambiguous by self-interested presidents,” to gasps and laughs in the chamber.

I bet Obama’s head exploded a little bit when he heard this. We gonna get another shameful attack on SCOTUS at the next state of the union address?

NotCoach on January 13, 2014 at 4:09 PM

Pfft. “Sounds like?” Who cares. John Roberts will find a way to screw us all and stomp the jack boot of totalitarianism on us once again. And, if by some miracle, he doesn’t do it in this case, you can just expect a double helping next time.

besser tot als rot on January 13, 2014 at 4:10 PM

8-1 against Obama. Ginsburg has already been chosen as the token vote to save Obama from embarrassment.

Rocks on January 13, 2014 at 4:10 PM

Slap Down comin’

txmomof6 on January 13, 2014 at 4:10 PM

We gonna get another shameful attack on SCOTUS at the next state of the union address?

NotCoach on January 13, 2014 at 4:09 PM

I went to a lunch with Scalia where he discussed his reasons for not going to state of the union. I think we can rest assured that he won’t be sitting there to quietly take any abuse from Obama, or any other President for that matter.

besser tot als rot on January 13, 2014 at 4:11 PM

I wish they had a pillory on the mall it would be worth the trip.

tim c on January 13, 2014 at 4:12 PM

Call me Eeyore

cmsinaz on January 13, 2014 at 4:13 PM

the word from SCOTUSblog about this morning’s arguments is that even some of the liberals seem ready to abandon ship.

Does that include John Roberts?

fogw on January 13, 2014 at 4:14 PM

Per Gabe Malor, there’s a chance that the Court could decline to rule at all on grounds that this is a political question, i.e. a dispute over powers between the executive and legislature on which the Constitution provides no meaningful guidance. Let the political process sort that out, not the courts. Two problems with that in this case, though.

There’s one problem with Gabe’s option – it is stupid. There is a problem with that rebuttal, however: John Roberts has never shied away from putting his name on an opinion filled with stupid.

besser tot als rot on January 13, 2014 at 4:15 PM

Does that include John Roberts?

fogw on January 13, 2014 at 4:14 PM

I expect him to lead the charge.

besser tot als rot on January 13, 2014 at 4:16 PM

Does that include John Roberts?

fogw on January 13, 2014 at 4:14 PM

I expect him to lead the charge.

besser tot als rot on January 13, 2014 at 4:16 PM

Back to Obama’s side, that is.

besser tot als rot on January 13, 2014 at 4:17 PM

They will find it a tax and find it’s ok.

rjoco1 on January 13, 2014 at 4:19 PM

If they do rule against Obama, what comes of all the rulings since the illegal appointments?

Will SCOTUS vacate all NRLB rulings since the appointments or will they say :

“Yeah, it was blatently unconstitutional but it would be just to darn hard to vacate all those rulings, so Mr. Plantiff, you get no relief. But hey, we’ve got a great “SCOTUS” T-shirt for you as nice parting gift!”

WisRich on January 13, 2014 at 4:25 PM

Roberts has already delegitimized the Court. Reed has done the same to the Senate, and the Speaker Crybaby being unwilling to call him out, fight back on anything, or in any way stand for the individual Sovereign citizen of this nation, has only followed suit.

It’s a sad thing that we even care what the court is going to say. We need to act, not wait on nine elite magistrates to save our country from the next incremental bit of tyranny.

How long are we going to expect them to act in our interests before we do it ourselves?

PXCharon on January 13, 2014 at 4:26 PM

I bet Obama’s head exploded a little bit when he heard this. We gonna get another shameful attack on SCOTUS at the next state of the union address?
NotCoach on January 13, 2014 at 4:09 PM

Scalia should come to the next SOTU with an iPod and earbuds, keep them in during droner-in-chief’s droning. When someone asks him afterwards what he was listening to, he can say “‘Reagan’s greatest hits‘”. When someone says the iPod was impolite, he can say “Hey, he’s got his electronics, I’ve got mine.”

Marcola on January 13, 2014 at 4:27 PM

If they do rule against Obama, what comes of all the rulings since the illegal appointments?

WisRich on January 13, 2014 at 4:25 PM

This is too scary of a question for John Roberts. Which is why he’ll rule for Obama.

besser tot als rot on January 13, 2014 at 4:28 PM

This is what Karma looks like and Obama, Reid Pelosi, etc. are not liking it. That is why they nuked the Filibuster, they knew this was coming.

Johnnyreb on January 13, 2014 at 4:29 PM

This is too scary of a question for John Roberts. Which is why he’ll rule for Obama.

besser tot als rot on January 13, 2014 at 4:28 PM

Indeed.

WisRich on January 13, 2014 at 4:32 PM

It all will come down to what the IRS or any of Obamas thugs at DOJ or other fed agencies have dug up on the conservative members of SCOTUS. I still think Roberts was blackmailed or paid off for his Obamacare ruling. I trust no pne in government at this point.

neyney on January 13, 2014 at 4:40 PM

“Obama’s recess appointments are a tax. Therefore, it’s all good.”
/John Roberts

Bitter Clinger on January 13, 2014 at 4:42 PM

Team O will soon have a closed door ‘social gathering clarification meeting’ with Kagan & Sotamayor

drivingtheview on January 13, 2014 at 4:43 PM

If they do rule against Obama, what comes of all the rulings since the illegal appointments?

Will SCOTUS vacate all NRLB rulings since the appointments or will they say :

“Yeah, it was blatently unconstitutional but it would be just to darn hard to vacate all those rulings, so Mr. Plantiff, you get no relief. But hey, we’ve got a great “SCOTUS” T-shirt for you as nice parting gift!”

WisRich on January 13, 2014 at 4:25 PM

This is what the case is about, some rulings by the NLRB have been challenged as unconstitutional because without the “recess” appointments the Board did not have a quorum necessary to rule.
If the appointments were not valid than the rulings they made cannot be.

rockmom on January 13, 2014 at 4:52 PM

I live for a surprise

jake-the-goose on January 13, 2014 at 4:52 PM

If he can’t, he’s basically at McConnell’s mercy.

… and in the name of ‘comity’ and such, McConnell will gladly oblige.

I don’t think it’ll get that far, though. I suspect that the SC will put on a good show, with some comments thrown out to make it look like they’re asking the right questions, duly considering everything, and in the end, will simply rule they way they’re supposed to.

Midas on January 13, 2014 at 4:52 PM

Roberts rule against Obama on this one? Hope I’m wrong, but I doubt it. I’m still in shock over his Obamacare behavior.

Hope I’m wrong

petefrt on January 13, 2014 at 4:53 PM

Scalia retorted, “It’s been assumed to be ambiguous by self-interested presidents,”

Scalia/Cruz 2016.

hillsoftx on January 13, 2014 at 4:56 PM

This is what the case is about, some rulings by the NLRB have been challenged as unconstitutional because without the “recess” appointments the Board did not have a quorum necessary to rule.
If the appointments were not valid than the rulings they made cannot be.

rockmom on January 13, 2014 at 4:52 PM

That would be the logical ruling, but of course we have the “It’s a tax!” Robert’s court still in play.

WisRich on January 13, 2014 at 5:00 PM

I’ll wait for the actual ruling, thank you.

Marcus Traianus on January 13, 2014 at 4:08 PM

I was laughing about how it sure looked like SCOTUS was going to b1tch-slap Obamacare, too. So I wondered how fast the Commentariat was going to nail it … pretty damn fast.

Wonder if Roberts has any idea how much he is mocked and reviled by the supporters of the constitution?

Jaibones on January 13, 2014 at 5:03 PM

And someone who understands the way the (corrupt, sickening) Federal government works … anyone … in order to vacate the rulings of the deconstructed NLRB, don’t we have to have a GOP with two nuts first?

Jaibones on January 13, 2014 at 5:05 PM

Scalia should go to the State of the Union and walk out if Obama attacks the Court.Can you imagine the liberal apoplexy?

redware on January 13, 2014 at 5:10 PM

…Harry Reid…JugEars is on line one… and on line two!

KOOLAID2 on January 13, 2014 at 5:11 PM

Sure sounds like the Supreme Court’s going to rule against Obama on recess appointments

So what? The Vichy GOP already made a deal with Barky and let him renominate the criminal douchebags he had illegally stuffed in those positions … with the Vichy GOP letting those criminal nominees fly right through as part of the “negotiation”.

Of course, that was the Vichy GOP Senate turds who made that deal while it’s the Vichy GOP House turds’ responsibility to impeach Barky for any of the tens of clearly illegal, un-Constitutional, un-American impeachable acts he has committed (and continues to commit at a breathtaking pace). But, the Vichy GOP House turds couldn’t even think of impeaching Barky for his insanely illegal dictats on illegals and granting them royal residency permits. For that, the turds in the House GOP tried to out-anti-American the Indonesian Dog-Eater by attempting over and over to aid and abet the illegal invasion even more.

As to the SCOTASS … who cares what they say about anything? That gang are a big, sick joke who know nothing about America, the Constitution or anything. Benedict Roberts and a bunch of those twits ought to be impeached and removed from the bench. They should be put on park benches, which are the only benches most of them are qualified to sit on.

The American Socialist Superstate … what a twisted, pathetic place.

ThePrimordialOrderedPair on January 13, 2014 at 5:20 PM

So when does the ruling come down, October 2015?

Cindy Munford on January 13, 2014 at 5:25 PM

They can’t really leave the issue unresolved.

The DC Circuit ruled against the Administration, so leaving their ruling intact is in effect upholding it – and if they were inclined to do that, they could have simply declined to review the ruling.

Since the only way to condone the Obama stance is to overrule the Circuit Court, some decision is required one way or another.

Obama’s argument, essentially, is that the Congress is being instransigent on the nominees so he has the power to go over their heads, in effect. SCOTUS can’t really set that precedent, even the ditzy leftists understand that a Republican will be in the White House one day and the powers they allow Obama to usurp can be used by all future executives as well.

Adjoran on January 13, 2014 at 5:31 PM

I’m sure Justice Roberts will find a way to throw Obama a bone. Thanks to the Ivy League, we now have “elites” deciding the law for us that can’t read the Constitution and abide by what it says. Now it’s open to interpretation depending on what political party you belong.

TulsAmerican on January 13, 2014 at 5:34 PM

Quite frankly, I’m betting the decision has already been made by SCOTUS, at least informally and internally. They’re just dotting the I’s and crossing the T’s.

Said decision was communicated to the WH over an arugula salad some months ago, and this is what prompted Reid to nuke the filibuster.

BobMbx on January 13, 2014 at 5:35 PM

Now to the intellectually-challenged Democrats posting in the NBC comments:

While I am not completely aware of what the constitution says about “recess” appointments. George W. Bush certainly did it so, so it is already in place that it is ok.

ALL Presidents have used recess appointments. But of course, the Republicans are aware they won’t be in the White House for a very long time so they’re not worried about a Republican President and what he or she might want to do.

If there wasn’t such a deranged desire to block everything Obama, this wouldn’t be necessary. Give it up, he DID get a second term.

When Tiger Woods won the Masters for the first time. The Master changed to course so he would not find it easier the next time( Called Tiger Proofing ) . The President is using the same rules his predecessors used and now the rules have to be changed. Hum?

Obama is the President, he was elected to do the job he is doing which is run the country. Your obstruction should be met with an equal force so as not to weaken this or any other presidents job.

And finally, this fascinating exchange between a seriously Stupid O’bama Cultist and someone who actually lives here on Planet Earth:

Obama coffers are filled with small independent contributions, GOP coffers have been filled with Koch bucks. Slight difference if you believe in democracy…

(This Low-IQ Wonder immediately disappears when confronted with FACTS:

http://www.opensecrets.org/orgs/list.php

Top donors for the last 30 years. The top 16 are all corps and all Dem. Fail again

Here’s individual donors. Soros is #2. Koch is #65. Fail again.

http://www.opensecrets.org/overview/topindivs.php

“IT BURNS!”

Del Dolemonte on January 13, 2014 at 5:45 PM

Quite frankly, I’m betting the decision has already been made by SCOTUS, at least informally and internally. They’re just dotting the I’s and crossing the T’s.

Maybe. But I’ve always heard there is very little internal communication.

With the fiasco Roberts created, maybe he’ll want to save a little face.

Maybe…

wolly4321 on January 13, 2014 at 5:58 PM

Hard to see how they could rule with a straight face that the Constitution is null and void whenever Obama doesn’t get his way.

Socratease on January 13, 2014 at 6:00 PM

Pro forma probably does need re-visiting. Legally. As do recess appointments in the jet age.

wolly4321 on January 13, 2014 at 6:03 PM

The entire Congress can be on a plane and back in DC in a matter of hours. Recess appointments no longer have a purpose.

The whole system is 100% political and broken.

wolly4321 on January 13, 2014 at 6:09 PM

This isn’t just against Obama it just so happens to be that he’s the sitting president this could be equally against bush 8 years ago

TheIkrim on January 13, 2014 at 6:12 PM

Don’t forget, the current Chief Justice believes that its not the job of the SC to protect the country from unconstitutional legislation.

BobMbx on January 13, 2014 at 6:16 PM

The entire Congress can be on a plane and back in DC in a matter of hours. Recess appointments no longer have a purpose.

The whole system is 100% political and broken.

wolly4321 on January 13, 2014 at 6:09 PM

They can, sure. Must they, at every whim of the President, return to session? I don’t think so. Sometimes you just have to look at El Presidente and say “sorry bro, you gotta wait”.

PXCharon on January 13, 2014 at 6:17 PM

they can, sure. Must they, at every whim of the President, return to session? I don’t think so. Sometimes you just have to look at El Presidente and say “sorry bro, you gotta wait”. PXCharon on January 13, 2014 at 6:17 PM

They were in session, pro forma. That’s the whole case. Suggesting they weren’t bolsters barkys position.

wolly4321 on January 13, 2014 at 6:36 PM

Big gov types love big gov. I wouldn’t put it past them to let him slide on this madness.

CWchangedhisNicagain on January 13, 2014 at 6:37 PM

They are scared shitless he’ll go FDR on them.

The dude has referenced the Lochner era as some sort of horror. He’s made a spectacle attacking them publicly.

wolly4321 on January 13, 2014 at 6:43 PM

They were in session, pro forma. That’s the whole case. Suggesting they weren’t bolsters barkys position.

wolly4321 on January 13, 2014 at 6:36 PM

That’s my point. Hence telling Obaka he needs to just wait.

Calling them back at any given time on the grounds that it doesn’t take their horses weeks to cross the country anymore, seemed to suggest that pro forma status was obsolete.

“Come back or I appoint this douche.” is clear inter-branch harassment.

PXCharon on January 13, 2014 at 6:45 PM

Depending on how narrow the court ruling is, Obama could have screwed up recess appointments for all Presidents. Of course, if they do rule against him, that will remove all doubt as to whether Obama is indeed a “constitutional scholar” as many Democrats love to claim.

bflat879 on January 13, 2014 at 6:58 PM

comee back or I appoint this douche.” is clear inter-branch harassment. PXCharon on January 13, 2014 at 6:45 PM

I agree. Recess appointments are obselete.

So is gavel in/gavel out at $174,000/yr.

Unsure, but how does potus Constitutionally required to prove urgency? That’s what recess appts were based on in the first place.

wolly4321 on January 13, 2014 at 6:58 PM

Does
Is

wolly4321 on January 13, 2014 at 7:00 PM

I’ve lost all faith in the USSC, they MIGHT do the right thing and then again they might NOT. It all depends on how a majority of them feel at any given moment. The rule of law is dead.

jnelchef on January 13, 2014 at 7:23 PM

If The Supreme Court rules in Obama’s favor, could a republican congress, after the next election, say Obama is on recess in Hawaii so we undo Obama Care? It makes just as much sense. Which is to say, no sense.

birdwatcher on January 13, 2014 at 7:28 PM

If they are co equal branches of government, one branch should not be allowed to disqualify the other. Right?

birdwatcher on January 13, 2014 at 7:34 PM

If he (Obama) can’t, he’s basically at McConnell’s mercy.

BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

You’re such a funny guy, Allah.

egmont on January 13, 2014 at 9:38 PM

They can’t really leave the issue unresolved.

The DC Circuit ruled against the Administration, so leaving their ruling intact is in effect upholding it – and if they were inclined to do that, they could have simply declined to review the ruling.

Since the only way to condone the Obama stance is to overrule the Circuit Court, some decision is required one way or another.

Obama’s argument, essentially, is that the Congress is being instransigent on the nominees so he has the power to go over their heads, in effect. SCOTUS can’t really set that precedent, even the ditzy leftists understand that a Republican will be in the White House one day and the powers they allow Obama to usurp can be used by all future executives as well.

Adjoran on January 13, 2014 at 5:31 PM

Yes. Pity that AllahP couldn’t remember that salient fact in his “analysis.”

mountainaires on January 14, 2014 at 5:36 AM

Justice Breyer being his typical Ultra-Progressive self, as posted by USA Today:

But Justice Stephen Breyer and other justices noted a long history of presidents making recess appointments. “Over time, language in the Constitution takes on a somewhat different meaning,” he said.

That is always his over-riding interpretation of the Constitution.

It doesn’t mean what is says. It means whatever Breyer wants it to mean.

Carnac on January 14, 2014 at 10:26 AM