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No, Mr. President, You Can't Do Whatever You Want

June 27, 2014 in Economics

By Ilya Shapiro

Ilya Shapiro

Much as it might frustrate Barack Obama, there’s no “if Congress won’t act, the president gets extra powers” clause in the Constitution. The latest confirmation of that truism comes in the unanimous Supreme Court ruling in National Labor Relations Board v. Noel Canning, which invalidated the appointments our constitutional-scholar-in-chief made to the NLRB in January 2012. It turns out, the unanimous Court ruled, that the presidential power to make recess appointments — to avoid getting the Senate’s “advice and consent” on federal offices — is only triggered when the Senate is actually in recess.

And so, for the 13th time since those ill-fated NLRB nominations, the Obama Justice Department has lost unanimously at the Supreme Court. In each of those cases, the government argued for a radically expansive federal — and especially executive — power and in each case not a single justice agreed. In areas of law ranging from criminal procedure (as in Wednesday’s cell-phone-search ruling) to securities regulation, immigration to religious liberty, President Obama couldn’t even get the votes of the justices he himself appointed, Sonia Sotomayor and Elena Kagan.

As Miguel Estrada commented when summarizing the solicitor general’s abysmal performance last term — a win rate of 40 percent, against a historical norm of about 70 percent — “when you have a crazy client who insists you make crazy arguments, you’re gonna lose some cases.”

For the 13th time since those ill-fated NLRB nominations, the Obama Justice Department has lost unanimously at the Supreme Court.”

In Noel Canning, all the justices agreed that the Senate gets to determine when it’s in session and when it’s not. (That’s an argument that Miguel Estrada made on behalf of all 45 Republican senators — you’ll recall that Estrada himself declined a recess appointment to the D.C. Circuit after Democrats filibustered him for being Hispanic — and it’s also what Cato argued in the brief we filed). And that’s no surprise: based on oral argument, everyone was expecting the government to lose here, and lose big.

Unfortunately, the conventional wisdom (which I shared) about a narrow ruling was also proven correct. The only “rule” that emerges from Justice Breyer’s controlling opinion is that a three-day recess, the longest the Senate can adjourn without the House’s consent, isn’t long enough to enable recess appointments. And that a recess of between three and ten days is also “presumptively” too short. That’s a pragmatic …read more

Source: OP-EDS

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