Mr. Obama, a Lawyer Who Asks the Wrong Question Always Gets a Bad Answer

The Supreme Court on Thursday limited a President's power to make temporary high-level administration appointments, ruling in favor of Senate Republicans in their argument with President Barack Obama. But the Justices did not take the more sweeping decision that would have effectively ended a President's power to make recess appointments when the Senate takes a break. It was the Court's first case concerning the Constitution's recess appointments clause, and it was a unanimous 9-0 decision that Obama's appointments to the National Labor Relations Board in 2012 without Senate confirmation were illegal. Obama's position before the Court was that the Senate was on an extended holiday break and that the brief sessions it held every three days - what lawmakers call "pro forma" - were a sham intended to prevent him from filling seats on the National Labor Relations Board. The majoriry opinion, written by Justice Stephen Breyer, rejected Obama's argument, ruling that the Senate is not in recess if lawmakers actually say they are in session and retain the power to conduct business. He said a congressional break has to last at least 10 days - arrived at by reviewing the 150-year history of intra-session recess appointments - to be considered a recess under the Constitution. The impact of the decision may be less important since Senate Democrats changed the rules to make it harder for the Senate's minority party - currently the GOP - to block Obama's nominations. White House spokesman Josh Earnest said : "We disagree with the Court's ruling." But he said that while the White House was reviewing the decision, "we'll honor it." Not a very respectful attitude toward the Supreme Court, but we have come to understand that the Obama White House is not high in the "respect" category. ~~~~~ The outcome was the least significant loss possible for President Obama. The appellate court ruling had gone further, deciding that the only recess recognized by the Constitution is the once-a-year break between sessions of Congress. It also said that only vacancies that arise during that recess could be filled. Justice Antonin Scalia, writing for himself, Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, said he would have upheld the reasoning of the US Court of Appeals for the DC Circuit. He noted that the Constitution's Recess Appointments Clause gives the President the power to "...fill up all Vacancies that may happen during the Recess of the Senate by granting Commissions which shall expire at the end of their next Session." ARTICLE II, Section 2, clause 3. For Scalia, that the majority deviated from that clear constitutional language will only cause future problems when the Court is asked to decide other separation of powers questions. As for the opinion based on the facts at hand, Justice Scalia writes : “The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need,into a weapon to be wielded by future presidents against future Senates....The only remaining practical use for the recess-appointment power is the ignoble one of enabling Presidents to circumvent the Senate's role in the appointment process, which is precisely what happened here." Scalia took the unusual step of reading his concurrence from the bench. For anyone who wants to read Justice Scalia's majestic concurring opinion, in which he demolishes the majority's faulty reasoning, caused by their refusal to accept the perfectly clear words of the Constitution's Recess Appointmrnts Clause - google 'NLRB vs. Noel Canning et al' - it is a masterpiece. ~~~~~ This Supreme Court decision is a major ruling because sets out clear rules for a President's exercise of his executive power to make recess appointments, a well-established practice that has been used thousands of times without generating a Supreme Court ruling. Obama has said that other Presidents have made more recess appointments than he has - and that is true as far as it goes - but Obama literally forced Supreme Court intervention because he was the first President to try to make recess appointments when Congress explicitly said it was not in recess. The Constitution requires that the Senate and House must get the other's consent for any break lasting longer than three days. At the end of 2011, the Republican-controlled House would not give the Democratic-led Senate permission for a longer break. The partisan roles were reversed during G.W. Bush's presidency, when Senate Democrats sought ways to prevent the President from making recess appointments. In fact, the very basis on which the Justices decided this case - that the Senate can use extremely brief sessions to avoid a formal recess - was a tactic devised by now Senate Majority Leader Harry Reid to frustrate President Bush. But, now the rules have been spelled out by the Supreme Court. And, Republican leaders in both houses of Congress, House Speaker John Boehner and Senate Minoriry Leader Mitch McConnell, praised the Court for rejecting what they described as Obama's unconstitutional power grab. If, as expected, the Republicans hold their House majority and gain enough Senate seats to become tbe majority party in the Senate, on a practical level, there may be little difference between how the Court decided the case and the way Justice Scalia wishes it had been decided -- because a President's recess appointment power has more and more often been forced to yield to the now-common Senate practice of blocking recess appointments by convening for pro forma sessions every three days. The Supreme Court's decision blesses this new reality. And it is now clear that a recess appointment cannot last more than two years. ~~~~~ Dear readers, because of President Obama's seemingly psychological need to challenge everything about the way the US government works under its Constitution, he forced upon himself a 9-0 Supreme Court decision against his action. It may seem odd that a President who considers himself a constitutional law expert could be so wrong-headed in a matter that is so cleatly against him. The words of the Constitution are clear - as clear as any in the document. And, President Obama narrowly avoided a far broader loss, one that could have limited recess appointments to breaks between Congress’s formal annual sessions, and even then to vacancies that occurred during those breaks - as supported by the appellate court decision and the approach embraced by the Supreme Court’s four conservative members and articlated by Justice Scalia : “The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” Justice Scalia wrote. But - Justice Scalia would have added if he had wanted to give the Court majority and the President a political lesson to match his constitutional construction lesson - but only when the Senate majority is the same political party as the President. Now, for all practical purposes, the Court has shut down the President's recess appointment power when the Senate majority party is not the President's party. For 150 years, Presidents have avoided getting this obvious answer from the Nine Men in Black...it took a President who is a "constitutional law expert" to force the wrong question and get the answer that limits presidential powers in the manner the Constitution clearly envisioned.