A recent Supreme Court ruling shows Congress should act if they think the President is breaking the law.
It’s Supreme Court decision season and while smart phone privacy and abortion rules are taking center stage, the Court’s recent decision about recess appointments shows how we as a nation should be dealing with questions of presidential overreach.
For review, the Constitution and current law gives the President the power to make temporary appointments in the executive branch without the approval of the Senate when Congress is in recess, like when everyone goes back to their home states. This issue of when recess appointments are allowed became important starting in 2009 when Republicans instituted what some call The 60 Vote Senate. Simply put Republicans started filibustering basically everything that comes before the Senate during most of the Obama presidency requiring 60 votes to pass something or confirm a nominee in a job in the executive branch, rather than a simple majority of 51.
This problem came to a head in 2012 when Republicans filibustered the President’s nominees to The National Labor Relations Board, the executive board that oversees much of how unions interact with management. Not so much because the nominees were unqualified but because Republicans in the Senate didn’t agree with their politics. In order to keep the President from appointing these nominees as recess appointments Senate Republicans tried to keep Congress permanently open, even when people went home, by gaveling in pointless “pro-forma” sessions. President Obama responded by simply appointing the nominees as recess appointments anyway based on the Administration’s interpretation of the Constitution. The Republicans cried foul and went to court.
Today the Supreme Court sided with the GOP and said basically that the President can only appoint recess appointments when Congress is adjourned for at least 10 days. Which it hadn’t been back in 2012.
A lot of the writing about this issue is typical partisan horse race stuff, like how President Obama lost. But the bigger point is that if Republicans really do think Obama is overstepping his bounds with Obamacare delays or Bergdahlgate or whatever, then they shouldn’t just whine about it. They should go to court and ask for a ruling. Laws are complicated and subject to all sorts of interpretation, so it’s no wonder Congress and The White House often disagree about what a law means. They’ve been disagreeing since the beginning of the country! The way we should solve these impasses in a democracy is to have the judicial branch sort it out, after all that’s a big part of why it’s there in the first place.
For the time being this ruling isn’t that important. The Democrats already invoked the so called “Nuclear Option” and got rid of the majority of filibusters on nominees last year, so reconfirming people won’t be that hard. In the future though Congress will have more power to block recess appointments, and this is a change in the balance of power between the executive and legislative branches. But the big winner here is probably American democracy in general. Democracies functions better when everyone knows the rules of the game before hand, and having a much clearer picture about when recess appointments are allowed is a good thing. And a good example of how Republicans should respond to a President they thinking is “overreaching” his powers.
Not by complaining on Fox News, but by going to court.
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