SCOTUS 'May Let GOP Block Obama Recess' Appointments, But Liberal Justices Skeptical of White House Case

January 14th, 2014 1:30 PM

When the Supreme Court sat yesterday to hear the matter of NLRB v. Noel Canning, virtually every justice was highly skeptical of the Obama administration's claim that President Obama's January 2012 "recess appointments" were a valid exercise of his constitutional authority. After all, the president made the appointments when the U.S. Senate was technically in session -- a minutes-long pro forma session, but in session nonetheless. Even former Obama solicitor general Elena Kagan, no conservative she, seemed critical of the White House's arguments.

And yet when MSNBC's Adam Serwer covered the story for the Lean Forward network's website, he predictably spun the matter as the conservative wing of the Court leading the way for an outdated, dust-covered "horse and buggy" reading of the national charter. "Supremes may let GOP block Obama recess noms," blared an early teaser headline, although that misleading, inaccurate headline was changed shortly thereafter to read "Supreme Court questions Obama's power," a slightly less erroneous headline but one which cast's the dispute in personal terms, not constitutional and institutional ones. (see below the page break for screen captures). Here's how Serwer opened his story (emphasis mine):


The Supreme Court seems poised to rule Obama’s 2012 appointments to the National Labor Relations Board unconstitutional, with some of the high court’s conservatives sounding eager to return to a view of recess appointments not held since the horse and buggy days.

“They have an absolute right not to confirm nominees that the president submits,” Chief Justice John Roberts said of the Senate during oral arguments Monday.

Serwer did then proceed to note that liberals on the Court likewise were highly skeptical, but not after setting the tone of the piece by suggesting that it was the Court's conservatives who were "eager" to essentially turn back the clock:

Roberts was hardly an outlier. Both the high court’s Democratic and Republican appointees appeared hostile to the Obama administration’s argument that the president could make recess appointments when the Senate is technically in session–even if the only reason they’re in session is to prevent the president from making recess appointments.

Justice Elena Kagan, appointed to the high court by Obama himself, warned Solicitor General Donald B. Verrilli Jr. that when it comes to deciding when the Senate is in recess, “the history is entirely on the Senate’s side, not on your side.”

Kagan, you may recall, once had Don Verrilli's post.President Obama once entrusted her to vigorously defend the Obama administration's interpretation of federal law and the Constitution. Even she, however, now sitting a lifetime appointee to the high court, doesn't seem to be able to defend the Obama White House spin on the recess appointment clause.

At any rate, for Serwer it doesn't matter that liberals on the Court seem likely to join conservatives and give a stunning rebuke to the president for abuse of power. Instead, the narrative is Republican "obstruction" of vital government business (emphasis mine):

Two years ago, seeking to prevent the National Labor Relations Board and the Consumer Financial Protection Bureau from functioning properly, Republicans kept the Senate in session while legislators were actually home for the holidays. Referred to as “pro forma sessions,” the Senate would be gaveled in for a few minutes just to deny Obama the authority to make recess appointments, just as Democrats once did with President George W. Bush.

Fed up with the Senate blocking key nominees to administration posts, Obama made the appointments anyway, arguing that the Senate was technically in recess since it wasn’t actually conducting business. When the NLRB ruled that Noel Canning, a canning and bottling company, had illegally reneged on a labor agreement with its workers, Noel Canning sued, arguing that the decision was invalid because Obama’s recess appointments to the board were unconstitutional.

For more than two centuries, American presidents have made recess appointments, sometimes between sessions of the Senate and sometimes when the Senate was on a temporary break. Sometimes presidents made recess appointments even when a vacancy occurred before the recess itself. But if the recess appointment power was once meant to keep the government functioning when legislators returning to the capitol meant a lot more than a few hours on a plane, it has since become a way for presidents to temporarily get around an obstructionist Senate–and there’s never been one quite as hostile as the one Obama has faced since taking office.

“Ambition should counteract ambition,” Verrilli said, pleading with the high court not to narrowly interpret the recess appointment power. “It shouldn’t disarm one side.”

To argue their case, and to highlight Democratic hypocrisy when it comes to obstruction, Senate Republicans chose Miguel Estrada, a one-time Supreme Court prospect whose nomination to the federal bench was blocked by Democrats while Bush was in office. “There is no parade, and there are no horribles,” Estrada said dismissing the Obama administration’s argument. All that would happen, Estrada said, was that presidents would have to nominate candidates “acceptable to the Senate.”

That sounds simple, but Republicans weren’t just opposing particular nominees, but the existence of entire agencies. In the case of the Consumer Financial Protection Bureau, Republicans refused to confirm any nominee for director unless the agency’s ability to regulate financial institutions was gutted. South Carolina Republican Senator Lindsey Graham said it would be “progress” if the National Labor Relations Board were “inoperable.” Under Obama, Senate Republicans were turning their “advise and consent” role into a tool for nullifying laws they didn’t have enough votes to block when they were passed.

Republicans in the Senate minority were simply exercising their constitutional and institutional prerogatives. Ultimately the issue at hand is one of separation of powers. The President cannot declare that the U.S. Senate is not in session when the U.S. Senate says the U.S. Senate is in session. To rule otherwise would be to improperly and unconstitutionally make the president the arbiter of the rules of the Senate, which the U.S. Constitution leaves strictly in the hands of the U.S. Senate.

Additionally, while the news media would love to make this court case about a confrontation between Senate Republicans and President Obama, it is strictly speaking a legal controversy involving the Noel Canning corporation, which has a grievance against the NRLB due to a regulation impacting its business which was put into effect thanks to the seating on the NRLB of recess appointments made during the Senate's pro forma session.

This is why both the initial and the update teaser headlines were inaccurate and misleading. The Supreme Court is not skeptical of "Obama's power" but of specific incidents of Mr. Obama's abuse of a presidential power, of an authorized trespass on the Senate's prerogatives. At issue is not the occupant of the office but abuse/misuse of power by the occupant which may require the Supreme Court to lay down a precedent to prevent future abuse by Mr. Obama and subsequent presidents after him, regardless of party or ideology.

MSNBC's audience skews heavily left-of-center, but even so the network should not insult their intelligence. Not everything in Washington is a partisan spitball fight, and indeed there are legitimate questions of abuse of power and the limits of presidential power here. You don't have to be an ideological conservative to see that, and MSNBC's lefty writers should have the intellectual honesty to admit that from time to time. But I'm not holding my breath.