As the Supreme Court opens its review of pending cases this week, there is substantial risk of constitutional mischief in many of them. The court will be ruling on the constitutionality of Obama’s recess appointments dating back to 2012, the constitutionality of the present caps on individual political contributions, the constitutionality of restricting protesters at abortion clinics, the constitutionality of ObamaCare’s mandate that employers provide insurance coverage for contraception, the authority of police to search the cellphones of people they arrest, and whether or not the practice of the city council of the tiny town of Greece, New York, to open its legislative sessions with prayer is constitutional.
In National Labor Relations Board v. Noel Canning, the court may confirm the District of Columbia Court of Appeals’ unanimous ruling that the president’s recess appointments were, in fact, unconstitutional. Writing for that court, Chief Judge David Stentelle concluded that
An interpretation of "the recess" that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement [in the Constitution] giving the President free reign to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.
This cannot be the law.
Although the president withdrew his nominations for Richard Griffin and Sharon Block to the National Labor Relations Board, such a ruling to confirm the lower court’s decision could seriously dampen the enthusiasm for future presidents to attempt to exercise such excessive authority in making recess appointments while the Senate is still in session. It also would confirm the present president’s disregard for limitations placed in the Constitution to prevent just such excesses.
On the other hand, failure to confirm would validate the president’s usurpation of powers delegated to Congress which no doubt future presidents would be only too happy to exercise.
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