This is the fifth and last of a series of posts on the issues that Adam Liptak has identified as prominent on the agenda of the Supreme Court in its current session. Liptak listed campaign finance, abortion, affirmative action, prayer and presidential power. I have dealt with them in that order. The remaining issue is presidential power.
This series of posts has been about political ideology—liberalism and conservatism—but it has approached ideology through a series of court cases. That means that a caution is in order. It is this: principles are not cases. Ideologies are notoriously general; cases notoriously particular. That’s important.
I can say I am a liberal (I am) and look at the likely implications of my liberalism, but when a particular case comes up, some difficulties can come up with it. It may not be clear just what a liberal ought to want from the Court in this case. Do the proper resolution of this case and the confirmation of my political ideology always point in the same direction? No, actually, they don’t always. They don’t today, in fact.
The questions I have been asking in this series are: a) being a liberal, what outcome do I expect to want; b) as I read the case, what decision seems fair and reasonable to me; and c) do my preferences for this case and my political position fit nicely together? Might I, for instance, have to question my liberalism on the basis of this case?
This is a family sort of game. You are all invited to play along. Pick the ideological name you apply to yourself, read the case on http://www.oyez.com and choose what action you want the Court to take, and then reflect on your ideology in the light of your decision.
The case that brings the presidential power question to us is National Labor Relations Board v. Noel Canning. The Oyez summary for this case is long and complicated and beside the point. You can see it here if you are curious. What follows is the Hess Summary.
Noel Canning, a distributor of Pepsi products committed an action that the Teamsters Union called “an unfair labor practice.” The National Labor Relations Board (NLRB)—consisting at the time of the one (1) member who had been duly confirmed by the U. S. Senate—agreed that it was unfair. Canning pointed out that there must be a quorum for the Board to make any rulings at all and that one member, on a five member panel, does not constitute a quorum. There were two other members on the Board at the time—a total of three, an official quorum—but President Obama had appointed these other two as “recess appointments.”
The power of the President to make “recess appointments” is what this case is about. Or, to look at it from the other side, the power of the Republicans in the Senate to keep the President from making any recess appointments at all is what this case is about. Let’s look at that side first.
The Republicans would really rather there would not be a National Labor Relations Board. If there has to be one, they would rather it be composed of pro-business, anti-union members. President Obama is deeply beholden to the unions for their support of his candidacy and for that reason, among others, he has been nominating pro-union members to the NLRB.
Is there anything the Senate Republicans can do to prevent the President from doing this? Of course. There are lots of ways and they have been used over the years by whichever party is in the minority in the Senate. But on this round, the Republicans came up with a new one. Here’s how it goes. The President is constitutionally permitted to make an appointment while the Senate is in recess. The way to block this power is for the Senate never to go to recess.
But wouldn’t that be a huge inconvenience for the Senators from, say, Oregon, who really want to and need to “go home” during the Senate recess? No, not at all. You see, the Senate doesn’t really need to be “in session.” The Republicans can prevent the Senate from recessing by lodging an objection to it. Then they can ask a Republican Senator from a nearby state to briefly open and close a faux “session of the Senate.” No business is conducted. Only the presiding Senator is present in the chamber. Imagine that this is the guy. The Senate members (99 of the 100 of them) are gone, but still the Senate is not “in recess.” If the Senate is never in recess, President Obama cannot make recess appointments.
That’s how it is done. The Supreme Court is being asked, in NLRB v. Noel Canning, to decide whether this one Senator’s performance means that the Senate is “in session.” If the Senate is in session, then the President cannot make recess appointments. If the President cannot make recess appointments, then he did not really appoint those other two members of the NLRB. If he did not really appoint those members, then there is only one member of the NLRB and there is not a quorum. If there is not a quorum, then the NLRB did not really agree that Noel Canning violated the rights of the Teamsters, as they alleged in their suit.
As I come to my liberal moment in this post, I have to admit that when the system is this broken, it is hard even to know what to want. Denying the constitutional powers of the President to make recess appointments is a serious constraint on his powers. I don’t want any President, especially one I like, to be deprived of those powers. On the other hand, I don’t want a President to be able to declare, on his own authority, that the Senate is in recess, when according to the rules of the Senate, they are not in recess.
There is, in other words, no good solution to the issue as it stands. There is no liberal solution and no conservative solution. Mitch McConnell, the minority leader of the Senate and the architect of the faux sessions strategy, can win if the Court agrees that the Senate really was in session. That would be a win for any Senate minority leader from here on, Democrat or Republican. Barack Obama could win if the Court agrees that a faux session is not really a session and that if faux sessions are all that is going on, the Senate is actually in recess, no matter what they call it. That would be a win for any succeeding President and would increase any President’s power over the Senate.
I don’t like either of those. We lose—the American people lose—either way. It’s hard not to hope that President Obama wins but there is no way for President Obama to win without “all succeeding Presidents” winning and I am pretty sure I am not going to like all the Presidents that succeed President Obama and I don’t want they all to be empowered.
I want the Presidents I like to have more power and the Presidents I don’t like to have less power. That is not what the Court is going to decide. I’m pretty sure of that.