By BETSY MCCAUGHEY
On Jan. 25, the 8th Circuit Court of Appeals rapped the president’s knuckles for disregarding the constitutional limits on his power.
If the court’s unanimous opinion, Noel Canning v. NLRB, is upheld on appeal, it will reverse the centurylong trend toward unfettered presidential power and breathe new life into the checks and balances the Framers devised.
The president picked this legal fight when he made three appointments to fill vacancies on the National Labor Relations Board (NLRB) on Jan. 4, 2012.
The date is important, because the president claimed to be making “recess appointments.”
That was a whopper. Recess appointments are a constitutional way to avoid seeking the “advice and consent” of the Senate.
But the Senate was not in recess on Jan. 4, 2012. Not as the Constitution defines that term or even according to looser Senate rules.
Lucky for Washington state Pepsi bottler Noel Canning. Shortly after the appointments, the NLRB made a decision unfavorable to Canning.
The company sued, claiming the appointments were unconstitutional and void, and without those new appointees the NLRB lacked a quorum to make any decisions.
The court ruled for Canning and against the NLRB, but more importantly, against President Obama’s imperial pretensions.
The ruling potentially nullifies dozens of NLRB decisions made in the past year. Never mind, said the judges. “We cannot accept an interpretation of the Constitution completely divorced from its original meaning to avoid inconveniences,” the court said. That’s refreshing.
The court examined each word of the Constitution’s recess appointment clause (Art II, sect. 2). “It is those words that were adopted by the people. When those words speak clearly, it is up to us not to depart from their meaning in favor of our own concept of efficiency.”
Then the court turned to the Federalist Papers, written during the nationwide debate over whether to ratify the new Constitution.
Alexander Hamilton assured a nation fearful of executive authority that the president would make appointments jointly with the Senate.
The only exception, said Hamilton, would be if a vacancy happened while the Senate was in “their recess” and had to be filled without delay.
For the first 80 years of the new nation’s history, no president evaded the Senate’s advice and consent.
But after the Civil War, presidents started gaming the system, waiting until Congress recessed to make controversial appointments.
Since the 1940s, presidents in both parties have abused the Constitution even further, making “recess appointments” when the Congress was not actually in recess but only temporarily adjourned for a holiday, for example.
One lawless gimmick begets another. During the George W. Bush administration, Senate Majority Leader Harry Reid invented a protocol for gaveling the Senate to order for a few minutes every third day, to avoid even a temporary adjournment.
Reid did it to block President Bush from making recess appointments during the Thanksgiving holiday in 2007.
The same tool was in use when Obama tried to make recess appointments to the NLRB.
The White House Office of Legal Counsel claimed the president can decide when the Senate is or is not in session. But the court said that was preposterous.
It would defy the Framers’ plan for checks and balances. “Giving the president free rein 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 inactivism. This cannot be the law.”
The court’s opinion reached a crescendo when the judges cited the most celebrated Supreme Court ruling in history, Marbury v. Madison.
President Obama is entitled to his own views on what is constitutional, wrote the judges, but “it is emphatically the province and duty of the judicial department to say what the law is.”
The 8th Circuit’s ruling conflicts with a 2010 ruling by the 11th Circuit Court of Appeals. The U.S. Supreme Court will decide.
If the 8th Circuit is upheld, it will help restore the balance of power between the executive branch and the legislative branch, enhancing Congress’s oversight of the president’s management of national affairs.
That is, if Congress can rise to the challenge.
• McCaughey is a former lieutenant governor of New York and author of the new book “Beating Obamacare.”