Next Monday the Supreme Court hears arguments on a case that will determine whether President Obama has the power to interpret the Constitution to his liking and not necessarily based on how the text reads.
Noel Canning vs. NLRB specifically concerns the legality of three appointments Obama made to the National Labor Relations Board during his first term. The Constitution specifically allows recess appointments that occur when both Houses are in recess and not holding sessions and these appointments do not require confirmation by the Senate.
In this instance Obama could not get his leftist appointments confirmed, so during a time when the Senate was in “pro-forma” sessions — specifically designed to block recess appointments — Obama unilaterally declared the Senate in recess and made the appointments anyway.
This is unconstitutional on its face, since under the separation of powers doctrine the Senate decides when it is in session and not the president. Otherwise a president even more lawless than the current occupant of the White House could send the House and Senate home when he was displeased just like the King of England used to do when he was unhappy with Parliament.
The Hill quotes Georgetown University Law Center’s Nicholas Rosenkranz, who is handling the case opposing Obama, as saying prospects for his case are essentially a slam dunk since the administration must convince the court on three important points:
1. It’s legal for the president to make “recess appointments” outside the break between numbered sessions of Congress.
2. The president may fill vacancies that were open before the recess occurred.
3. “Pro-forma” sessions of Congress do not prevent recess appointments.
If the administration loses on any one point, it loses the case.
Normally I would be optimistic about the court seeing the obvious and reigning in an arrogant and abusive administration. But that was before Justice John Robert’s started writing legislation as he did in his obviously political Obamacare ruling.
Overturning these three NLRB appointments will call into question hundreds of decisions the board made during their tenure. And this is where weathervane Roberts may get cold feet. Overturning these decisions will cause turmoil and require the board to revisit a number of cases. Rather than endure criticism that Roberts appears to dread, the court may crater yet again.
The lesson for would-be czars in that event is to be as bold as possible for as long as possible and the court will decline to enforce the Constitution because it would be too inconvenient to follow the law.
Michael Reagan is the son of President Ronald Reagan. He is president of The Reagan Legacy Foundation and chairman of the League of American Voters. Mike is an in-demand speaker with Premiere. Read more reports from Michael Reagan — Go Here Now.