Welcome news on the merits, but I doubt Obama cares much. If he wins, then the Cordray and NLRB appointments are vindicated constitutionally, which will give him political cover to be even bolder with his executive power grabs. If he loses, then instead of whining endlessly on the campaign trail this year about the conservative “do-nothing Congress” (only half of which is controlled by conservatives, of course), he can whine about the conservative “do-nothing Congress” and the conservative courts that are allegedly rubber-stamping their obstructionism. All the more reason to re-elect him and let him appoint more judges.
Which is to say, as in all things Obama, I don’t think he cares half as much about whether these appointments are upheld as whether the politics of it works out for him. And this should work out okay no matter what happens.
Nearly 40 Senate Republicans say they will sign on to a court challenge of President Barack Obama’s appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board…
“American democracy was born out of a rejection of the monarchies of Western Europe, anchored by limited government and separation of powers,” Texas Sen. John Cornyn said in a statement. “We refuse to stand by as this president arrogantly casts aside our Constitution and defies the will of the American people under the election-year guise of defending them.”
The senators didn’t indicate which legal case they would join, but one lawsuit making its way through the courts includes a Jan. 13 claim by the National Federation for Independent Business and the National Right to Work Legal Defense Foundation. It argues that appointments to the labor board are unconstitutional. Sen. Rand Paul (R-Ky.) announced earlier this week that he would join that case.
Here’s a PDF of the signatures. Not among them: Scott Brown, who’s more interested in cozying up to Obama in front of Massachusetts voters than lending his name in defense of separation of powers. Question for con law types: What are the odds that the courts will refuse to rule on this on grounds that it’s a nonjusticiable “political question”? My hunch is that they’ll rule because they’re being asked a straightforward interpretive question about a very specific constitutional clause: Namely, what’s a “recess” for purposes of Article II, Section 2? Whatever definition they lay down won’t necessarily shift power from the legislature to the executive or vice versa as a structural matter, it’ll simply be bright-line guidance for both branches on when the president can and can’t act unilaterally in the future. Michael McConnell, a perennial GOP Supreme Court candidate, also thinks the courts will take up the matter, but I’m interested in dissenting opinions if there are any.