Another major confrontation between conservatives and the president is currently being argued before the Supreme Court. Since 2009, when Barack Obama took office, there has been a battle over confirmations between Senate Republicans and the president. The most recent conflict results from the president’s unilateral appointment of three National Labor Relations Board members during the December 2011/ January 2012 congressional recess.
Based upon a January 13, 2014, article in the Christian Science Monitor entitled, “Supreme Court Justices Question Recent Appointments” by Warren Richey, it’s important to understand the issues behind this lawsuit to discern the power struggle in a fuller way.
The Republican Senate perspective: According to the Constitution, the Senate has the power to confirm presidential appointments, in this particular instance, the appointment of three National Labor Relations Board members. Senate Republicans have never liked this agency that was created during the Great Depression because it tends to rule against business. Noel Canning, a Washington state bottling company, is bringing this issue before the Supreme Court. Canning sued, stating the NLRB decision against them was unconstitutional because the three board members were illegally appointed during the winter recess.
The Supreme Court is made up of five justices who are conservative and pro-business. Since George W. Bush appointed Justice Samuel Alito and Chief Justice John Roberts in 2005, the direction of the court has moved solidly to the conservative perspective. The January 2010 Citizens United campaign financing case is one of many examples. It seems to me that the Republicans in the Senate are banking that the five conservatives on the court will favor their view over that of the Democratic president.
The president’s perspective: Since Ronald Reagan, Republicans have had the goal of bringing a major shift away from the social reforms created by Franklin D. Roosevelt during the Great Depression. They have focused on filling the courts with conservative thinkers whose court decisions will bring about the economic and political changes they prefer. Thwarting confirmations of the president’s board appointments through delay is part of that larger strategy.
President Obama realized the Republicans do not want the NLRB to function because the agency’s purpose is to regulate business. Not confirming the presidential appointments renders the NLRB useless and puts the power of the NLRB under a cloud.
In frustration and in an act of defiance, the president decided to use the part of the Constitution that allows him to make appointments during Congressional recesses, an option created by the founders to allow for the immense amount of time it took to travel in the late 1700s.
Republicans in the Senate realized the president was probably going to make recess appointments to the NLRB, so they got the Senate to remain in operation over the 2011-12 winter break, thus thwarting his plans and weakening the president.
The Senate did this by voting to have “pro forma” sessions every three days during the winter break to prevent the president from making those appointments.
The Supreme Court decision that comes from the Noel Canning case will decide between the president and the Senate. Will the five conservative justices vote to weaken the Democratic president’s powers or will they decide to strengthen his hand at the expense of Congress?
The decision will be announced in June of this year. This case is one to watch to see which direction the Roberts court is going to take. The decision will either weaken the presidency or the power of the Senate. No matter what the decision is, the power of the Supreme Court will increase.
