Last year, Senate Republicans tried to effectively repeal the Consumer Financial Protection Bureau by refusing to confirm anyone President Obama nominated to lead that agency. In response to this attempt to sabotage the new agency, Obama recess appointed Richard Cordray over the Senate GOP’s objections, and he also recess appointed several people to the National Labor Relations Bureau to prevent a likely filibuster of those officials from shutting down that agency as well.
Needless to say, Senate Minority Leader Mitch McConnell (R-KY) is not happy that President Obama thwarted his power grab, so he’s once again trying to get judges to roll back decisions made by the people the American people elected to govern:
Senate Minority Leader Mitch McConnell (R-Ky.) said Tuesday that his conference has hired conservative attorney Miguel A. Estrada to file a brief in a case brought by Noel Canning, a Washington state businessman who operates a bottling company. Canning plans to challenge an NLRB ruling that said his company must establish a collective bargaining agreement with a labor union.
McConnell once again called Obama’s appointments an “unconstitutional action” and said his colleagues had been seeking a strong legal challenge to the appointments to support.
McConnell’s legal arguments are not strong. Although the Senate minority claimed that it could thwart recess appointments by having a single senator hold a pretend Senate session every three days, the Senate simply does not have the power to block appointments simply by hosting a meeting in the Neighborhood of Make Believe. As two of President George W. Bush’s top constitutional advisors explained in 2010, the Senate is in recess when it is “not capable of acting on the president’s nominations.” Because no nominees can actually be confirmed in a make believe session, these fake sessions do not defeat Obama’s recess appointment’s power.
Moreover, even if they did count as real sessions, it’s not at all clear that the Senate was not in recess during the three days between the pretend meetings. As the highest federal court to consider the question explained in Evans v. Stephens, “[t]he Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.”
Ultimately, however, this case is likely to turn less upon what the Constitution actually permits than on the outcome of the high-profile challenge to the Affordable Care Act. The case against health reform is significantly weaker than the case against Obama’s recess appointments. Nearly 200 years of Supreme Court precedent conclusively establish that the Affordable Care Act is constitutional, not to mention the text of the Constitution itself. In the words of Judge Laurence Silberman, a leading conservative who received the Presidential Medal of Freedom from George W. Bush, the case against the ACA has no basis “in either the text of the Constitution or Supreme Court precedent.”
Yet despite the fact that the health care challenge is so weak that it borders on frivolous, several of the Supreme Court’s conservatives appeared more interested in doing the Republican Party’s bidding than they did in actually following the law when the health care case was argued last month. If the justices ultimately strike down the Affordable Care Act, they will send a clear signal to every judge in the country that the Constitution does not apply any more when there is an opportunity to embarrass Barack Obama.
So Mitch McConnell might have a chance of winning his case after all — at least if the judiciary decides to put partisan politics ahead of the law.