The Obama regime suffered a massive blow in today’s Supreme Court decision in the National Labor Relations Board v. Noel Canning case. The court ruled unanimously against Obama’s 2012 recess appointments to the NLRB, stating they were unconstitutional.
While the court ruled unanimously against Obama, it remained split as to why the appointments were illegal with Justice Steven Breyer criticizing the president for disrespecting the balance of power by trying to claim the Senate was in recess while they actually weren’t. He was joined by Kennedy, Ginsburg, Sotomayor, and Kagan in his opinion while Justice Antonin Scalia along with Justices John Roberts, Clarence Thomas, and Samuel Alito took their opinion even further.
Their separate opinion argued that the Recess Appointments Clause “cabins” the president’s authority in two ways. “First, it may be exercised only in ‘the Recess of the Senate,’ that is, the intermission between two formal legislative sessions. Second,” Scalia continued, “it may be used to fill only those vacancies that ‘happen during the Recess,’ that is, offices that become vacant during that intermission. Both conditions are clear from the Constitution’s text and structure, and both were well understood at the founding.”
However Breyer’s majority opinion interpreted the Recess Appointments Clause as allowing both vacancies that occurred during an actual recess along with those that occurred while the Senate was in session. According to Breyer’s opinion, the interpretation of the Constitution chosen by Scalia’s minority “would render illegitimate thousands of recess appointments reaching all the way back to the founding era.”
Scalia responded to Breyer’s jab, and accused him of rewriting the Constitution while engaging in “judicial adventurism.” The key portion of Scalia’s concurring opinion reads:
“Today’s Court agrees that the appointments were invalid, but for the far narrower reason that they were made during a 3-day break in the Senate’s session. On its way to that result, the majority sweeps away the key textual limitations on the recess-appointment power. It holds, first, that the President can make appointments without the Senate’s participation even during short breaks in the middle of the Senate’s session, and second, that those appointments can fill offices that became vacant long before the break in which they were filled. The majority justifies those atextual results on an adverse-possession theory of executive authority: Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not “upset the compromises and working arrangements that the elected branches of Government them
selves have reached.”
Ultimately, the debate at hand is whether what has been practiced over time should be what determines the decision or if the justices should rely strictly on the constitutional text as the final controlling authority. Scalia and the justices that agreed with him relied on constitutional text while the majority opinion sided with historical practice.
While in this case the outcome may have been the same either way, such different approaches could have drastically different results in other cases.
Do you think justices should rely on the original text of the Constitution or use historical practice when making a decision? Let us know with a comment!