Over at Instapundit, Glenn Reynolds notes that there's "High Drama At the Supreme Court" today. Indeed. The case being heard, National Labor Relations Board v. Canning, involves the president's ability to make recess appointments, While there's no question that the president can indeed do such a thing, there are serious questions about what constitutes a break or recess in Senate proceedings. In 2010, Barack Obama invoked the power to name three people to the National Labor Relations Board while the Senate was technically still in session (the specific case arose after Noel Canning lost a decision made by the NLRB).
As Damon W. Root explained earlier this year:
Senate Republicans were then gaveling the body to order every few days for the precise purpose of denying the president his lawful ability to make such appointments. Among the issues before the Supreme Court is whether Obama's actions exceed his constitutional authority to "fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."…
The hubbub is important, says Root, the
arguments in NLRB v. Noel Canning will feature two competing liberal takes on executive power. One, originally filed in opposition to George W. Bush, views the Recess Appointments Clause as a narrow grant of presidential authority. The other view, filed in support of Barack Obama, sees the clause as a broad affirmation of the president's power to shape national affairs.
Canning highlights the willingness with which many on either side change principles based on their preferred outcome. The whole practice of gaveling the Senate to order to prevent recess appointments was a Democratic innovation used expressly to screw over George W. Bush. Back then, Senate Republicans trotted out what came to be known as the "nuclear option," or the waiving of Senate filibuster rules so presidential appointments could quickly proceed to a simple up-or-down, majority vote. The Democratic leader of the Senate, Harry Reid (D-Nev.) said this was worse than an abomination, of course. Right up until the moment last year when he did precisely that. And of course, Republicans who were for the waiving of Senate protocol when it helped their side were predictably disgusted by the Caesarism of Sen. Reid in 2013.
Here's the New York Times editorial board weighing in on the matter:
To be fair, Senate Democrats introduced this tactic in the last years of George W. Bush's presidency, but Republicans have blocked Mr. Obama's appointments at a far higher rate. They have made an art of avoiding up-or-down votes on judges, agency officials and even cabinet members.
Since the Senate finally voted last November to eliminate the filibuster for most presidential nominees, Mr. Obama should have an easier time getting them confirmed. But there are still plenty of tricks senators can use to jam the system, from refusing to conduct hearings to placing holds on nominees. And if Republicans retake the Senate in November, they won't need a filibuster to keep Mr. Obama's agencies from functioning.
How can anyone really take governing seriously these days? Each side in any given matter so clearly only cares about rules when they serve that side's immediate purpose. As I noted last October, isn't the whole notion of senatorial oversight supposed to act as a moderating influence on presidential appointments? The government, especially the Senate, isn't supposed to be a rubber stamp on anything. It's supposed to slow things down, throw sand in the gears, a spanner in the works, etc. You can find that frustrating as hell and even stupid by every measure, but for god's sake, when you come out against only when it gets your partisan panties in a bunch, at least have the common decency to admit as much. Whether you're a Republican or conservative or Democrat or liberal or whatever.