Recess appointment ruling a rebuke to Obama, but also to Reid

Nobody should be surprised by the U.S. Supreme Court’s ruling in National Labor Relations Board v. Noel Canning, least of all readers of this column.

I told you back in January 2012 that President Barack Obama was wrong to appoint members to the National Labor Relations Board using his recess appointment powers, since the Senate wasn’t in a recess at the time. And I said back then that Senate Majority Leader Harry Reid was wrong to allow it to happen.

On Thursday, the Supreme Court agreed, ruling that because the Senate was still in session, albeit brief, “pro forma” sessions (which Reid once used to great effect during the George W. Bush administration to block judicial nominations), Obama lacked the constitutional authority to make appointments.

And it could have been even worse. The court rejected arguments that recess appointments are only available for vacancies that actually occur during Senate recesses, not for filling offices that were vacant before the Senate took a recess. That view could have severely hindered future presidents from making much-needed appointments.

The New York Times called it an “unambiguous rebuke” to Obama (and, it must be said, to the White House lawyers who stretched like salt-water taffy to manufacture a justification for using the recess-appointment power to get around a Senate minority unwilling to grant hearings to even well-qualified nominees, for partisan reasons).

But if it was a rebuke to Obama, it must also be a rebuke to Reid. While Bush was in the White House, Reid considered the recess appointment process “an end run around the Senate and the Constitution,” and an “abuse of power.” He invented a method to prevent Bush from appointing judges to whom Senate Democrats objected: Every few days during a normal vacation period, a senator would gavel a nearly empty chamber to order, conduct little or no business, and then adjourn. As a result, it could not be said that the Senate was in recess, and Bush could not make a recess appointment.

But in 2011, with a new president in the White House, and Republicans using filibuster powers to thwart even nominees they acknowledged were well-qualified, Reid’s view changed, and he raised no objections to Obama’s recess appointment during a Senate break, even though the pro forma sessions were taking place at the insistence of the GOP.

Reid greeted Thursday’s decision with complacency.

“Since President Obama took office, Senate Republicans have done everything possible to deny qualified nominees from receiving a fair up-or-down vote,” Reid said. “President Obama did the right thing when he made these appointments on behalf of American workers. The National Labor Relations Board had ceased to function due to Senate Republican obstruction of these three qualified nominees, threatening the livelihood and safety of working men and women throughout the country.

“More than anything, today’s Supreme Court ruling underscores the importance of the rules reform Senate Democrats enacted last November,” Reid added.

He was referring to a controversial change in filibuster rules, which did away with a 60-vote threshold for approving administration and (non-Supreme Court) judicial nominees, replacing it with a simple majority. That change has allowed Democrats to get many nominees an up-or-down vote when they might otherwise have languished indefinitely. But that change shows the reckless recess-appointment provocation was entirely necessary.

No matter how intransigent Republicans were at the time — or how intransigent Democrats may be should they ever find themselves in the minority again — there is no way to justify ignoring the Constitution for momentary political advantage. Thursday’s ruling clearly reminds us the Constitution sets limits on the authority of the president to act, and those limits will be policed by the judicial branch. That’s as it should be. Let’s hope everybody in Washington was listening.

Steve Sebelius is a Las Vegas Review-Journal political columnist who blogs at SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or ssebelius@reviewjournal.com.