- - Thursday, June 26, 2014


It’s been a bad week for President Obama. Twice, he’s been caught red-handed, violating the Constitution’s separation of powers. On Monday, in United Air Regulatory Group v. EPA, the Supreme Court ruled that the president’s carbon-emission “tailoring rule” exceeded Congress‘ intent in the Clean Air Act, proclaiming, “Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers.”

On Thursday, in NLRB v. Noel Canning, the court smacked down the president’s arrogant skirting of the Senate’s prerogative to confirm presidential appointments. No other president ever attempted to make an appointment while the Senate was still in session, without seeking, as Article II requires, the “advice and consent” of that chamber.

At issue in Noel Canning was the recess-appointments clause of Article II, which declares that the “President shall have power 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 clause was designed to allow the temporary filling of vacancies during a Senate recess, providing a means to keep the government running until the Senate could reconvene.

But Mr. Obama isn’t a fan of the Constitution’s original meaning, and certainly not its pesky limits to his power. He thus opted to write a carbon-dioxide emissions rule that Congress never approved, and ignore the recess-appointment clause’s plain command that there be an actual recess, appointing three members of the National Labor Relations Board (NLRB) while the Senate was still in session.

Mr. Obama’s motivation in both situations was utilitarian: He wanted what he wanted, and he wanted it now. Like a petulant child, the president decided that if Congress wouldn’t grant him the law or appointments he wanted, he’d just work around them, and do it himself. Never mind that, as the court had to remind him in Utility Air Regulatory Group that “Under our system of government, Congress makes laws and the President … ‘faithfully execute[s]’ them.”

When pressed in court to justify his aggressive maneuvers, the president asserted that he was entitled to “deference” and, in the Noel Canning case, he audaciously claimed the Senate wasn’t really in session — that its session was just “pro forma.”

But the court in Utility Air Regulatory Group reminded Mr. Obama that presidents aren’t entitled to deference on everything they do. When Congress passes a law, the court said, “An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” In Noel Canning, the court recognized that the Senate, not the president, determines when it’s in session, holding, “for purposes of the Recess-Appointments Clause, the Senate is in session when it says it is” and concluding that the president’s argument was “contrary to precedent instructing us to ‘respect … coequal and independent departments’ by, for example, taking the Senate’s report of its official action at its word.”

Utility Air Regulatory Group and Noel Canning reaffirm the Supreme Court’s willingness to carry out its most difficult but important job: enforcing the Constitution’s separation of powers. Given this imperative, it’s unfortunate that House Speaker John A. Boehner’s courageous decision to seek House approval of a lawsuit challenging the president’s failure to faithfully execute the laws has been criticized — even by some on the right — as a waste of time. These naysayers insist that the remedy is impeachment, or cutting off funding for various programs. Some conspiratorially opine that Mr. Obama would disobey the Supreme Court.

These naysayers have it exactly backward: Impeachment is the waste of time, but not litigation. Even assuming the House passes articles of impeachment, conviction by two-thirds of a Democrat-controlled Senate will simply never occur on Senate Majority Leader Harry Reid’s watch, for doing what Democrats have begged the president to do: namely, altering laws they don’t like, don’t have the votes to amend themselves, or didn’t bother to read.

As for cutting off funding, what programs, exactly, should be defunded? Homeland Security? The Transportation Security Administration? The Defense Department? Medicare? Such drastic action would hurt the American people, cut off funding for programs Congress actually supports, create nefarious distortions of political accountability, and be ill-tailored to the problem at hand — a lack of faithful execution of the law. As for conspiracies about the president disobeying the Supreme Court, suffice it to say that if a president behaved this way, impeachment would then be much more appropriate and likely.

Regarding litigation, Utility Air Regulatory Group and Noel Canning proclaim, energetically, that asking courts to defend our Constitution is never a waste of time and always a wise investment.

Mr. Obama has unabashedly proclaimed a desire — strangely applauded and encouraged by Democratic members of Congress — to use his “pen and phone” to expand executive power and bypass the legislative branch. Thankfully, the Supreme Court isn’t countenancing such constitutional circumvention.

Elizabeth Price Foley is a professor of constitutional law at Florida International University College of Law.

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