26 June 2014
When SCOTUS is unanimous, the President F'd up
The question of recess appointments has been a partisan tug-of-war for some time now. When one party has the power in the legislature to block executive-branch appointments, the executive, when of the other party, waits for the legislators to take a recess and then claims the power to make recess appointments in their absence. That power comes from the Constitution's "Recess Clause," a relic of the era when it would take some time for Senators to return to Washington from their breaks and it was sometimes necessary that the President not wait for them to return to ratify his appointments to fill crucial vacancies. In our more partisan age, a presidential recourse to the Recess Clause is seen as a dodge, a way to avoid having to compromise with legislators of the other party who can block the ratification process. In the unanimous opinion of a normally-divided Supreme Court, President Obama has gone too far in that recourse. The problem with Obama, the Justices have ruled, is that he chose, on his own authority, to declare the Senate in recess in order to make fast-track appointments, when the Senate was actually in "pro-forma" session. Admittedly, the idea of the pro-forma sessions was to keep the Senate out of recess and keep the President from making recess appointments. Unfortunately for the President, it isn't up to him to say that the Senate is in recess. That was the specific point affirmed in today's 9-0 ruling; it is for the Senate and the Senate only to declare itself in or out of recess. Anything else imperils the separation of powers. Even the "liberal" Justices had to acknowledge that, in this respect, the Constitution is biased in favor of obstruction. Recall that Obama's party controls the Senate, yet minorities or individual members can delay or thwart executive appointments for ideological reasons or no stated reason at all. Some of that can be corrected by simple rules changes rather than constitutional amendments, if the majority party can maintain resolve in the face of inevitable cries of "power grab!" and is willing to concede the same power to the other party once it has a majority again. Beyond that, Americans need to discuss where the happy medium is between preventing genuinely undesirable executive overreach and preventing an ideological minority (or the vested interests behind them) from exercising an effective veto on executive functions. Right now things seem out of balance. The presidential mandate seems constantly obliged to defer to the legislative mandate, while legislators rarely seem forced by the rules into similar deference. It looks that way because Congress itself is divided; should the Republicans reclaim the Senate this fall, they'd probably soon find themselves obliged to defer to the presidential veto power if they can't override it. Even then, the law has an obstructionist bias, allowing the President to prevent Congress from doing something. In our vaunted system of checks and balances, the checks are obvious, the balance less so. If ideology continues to prevent Americans from balancing their different interests, our government may end up checkmating itself.