Obama powerful, not all-powerful
Presidents may resent the Senate's power to confirm their nominees, but they can't ignore it.
President Barack Obama has made no secret of his dislike in dealing with Congress, particularly the Republican-controlled U.S. House of Representatives.
His recent suggestion ("So sue me") to Republicans if they do not agree with his unilateral decisions and Obama's repeated reminders that he intends to go around Congress by use of a "pen" for signing executive orders do not indicate any change of mind pushing the envelope of presidential power.
Still, Obama would profit from a thoughtful examination of a recent unanimous U.S. Supreme Court decision that reminded him that the U.S. Constitution established three separate and co-equal branches of government that are required to deal with each other, not an executive autocrat who is free to do what he pleases when he pleases.
The decision involved the president's use — actually his abuse — of his authority to make recess appointments, that is filling vacancies with temporary appointees when the Senate is not in session. Rather than wait in 2012 for the Senate to approve his appointees to the undermanned National Labor Relations Board, Obama simply declared the Senate to be in recess and unilaterally made the appointments.
While the Senate was on a break, it was not in recess. Owing to a similar recess appointment dispute with President George W. Bush, the Democratic-controlled Senate held brief pro-forma sessions during its breaks to block Bush from evading the confirmation process with recess appointments.
President Bush recognized the legitimate legal obstacle and did not challenge it. But Obama took a different course when the Democratic-controlled Senate continued to hold pro-forma sessions.
In the NLRB case, the president simply declared the Senate to be in recess and put his appointees in office. Once up to the required legal strength, the NLRB started issuing rulings.
But the Noel Canning Corp., a Washington-based company, challenged an NLRB decision on the grounds that it was void because it had been adopted by a board with members who had never been properly confirmed by the U.S. Senate. In essence, Noel Canning argued that Obama's declaration that the Senate was in recess when the Senate insisted it was not in recess had resulted in the improper placement of illegitimate recess appointees on the board.
Indeed, the company argued that it was not just the decision affecting Noal Canning that was devoid of authority but all of the hundreds of decisions made by the board.
The high court agreed, unanimously rejecting Obama's claim of power to go over the Senate's head in making appointments whenever he chooses.
"The Senate is in recess when it says it is," Chief Justice John Roberts wrote on behalf of a unanimous court.
Of course, it is. Allowing any president the kind of heavy-handed power Obama asserted would have turned the Constitution's separation of powers on its head.
There is, of course, a natural tension built into the American system of government. Distrusting the idea of conferring too much power in too few hands, the Founders intentionally built checks and balances into our national government, specifically three branches of government, each watching the others like a hawk and jealously guarding its constitutional prerogatives.
Under that balance, President Obama makes appointments to executive branch departments while the Senate has the power to advise and consent to those appointments. Frankly, it's pretty simple to understand. Given President Obama's background as a lawyer and professor of constitutional law, it's obvious that he knew he was pushing the envelope but did not care.
It is understandable that presidents like Obama and Bush and others before them become impatient with Congress and try to increase executive branch authority at the expense of congressional authority. All three branches of government periodically fight with each others.
But that is the idea, the principle being that it's the people whose liberty is protected when legislative, judicial and executive branch officials assert their authority.
President Obama's abuse of his power was egregious in this case. Because it bordered on the unthinkable, it was indefensible. That's why the nine justices on the high court — liberals and conservatives — put the president in his place by delivering a message President Obama ought to heed.