Executive Disorder

The Constitution’s Recess Clause allows presidents to make executive appointments when the Senate is in recess. In 2012, Obama declared the Senate to be in recess when it was actually in session and proceeded to appoint three individuals to the NLRB. In National Labor Relations Board v. Canning, handed down on Thursday, the U.S. Supreme Court unanimously invalidated the appointments.

 

Canning calls into question two years of NLRB rulings because a majority of the Board was unlawfully appointed. But the most far-reaching impact of the decision is its invalidation of presidential appointments.

 

This is the first time in U.S. history that the Court has heard a case on the Recess Clause. But, not because recess appointments have never been challenged. Over the years, federal appellate courts have struck them down on occasion. The affected presidents chose to avoid the risk of adverse Supreme Court rulings by forgoing high court review.

 

In Canning, the D.C. Circuit Court of Appeals struck down the NLRB appointments. The Obama administration, ignoring the path taken by the President’s predecessors, appealed to the Supreme Court. The risk of a negative outcome that would hamper his last years in office is now reality.

 

The Supreme Court decision portends another problem for the President. He issues executive orders without even trying to work with Congress. He simply declares that any such attempts would be a waste of time because of Republican opposition to his agenda. He does not pass negotiation. He goes directly to his “pen and phone” option.

 

This tact is similar to his declaration that the Senate was not in session as a pretext for making his NLRB appointments. Not only was the Senate in session, the Supreme Court stated that it is the Senate, not the President, which makes that determination.

 

Despite the President’s refusal to even talk with opposition leaders, his supporters claim that, using a numbers metric, his actions are proper.  For example, he makes judicious use of his executive order powers simply because he has issued many fewer than most Presidents in American history.

 

The numbers game has become the President’s third favorite pastime. The first is golf. The second is still blame, although that one is wearing thin. So, enter the numbers game. The rules are very simple (1) substitute numbers for substantive assessments and (2) score small numbers in Obama’s favor, large numbers against his opponents.

 

Under the game rules, the President’s executive orders, being relatively few in number, work in his favor. Never mind the fact that they substantially modify, if not repeal, laws passed by Congress. Keep your eye on the small number.

 

Likewise, there is nothing to Benghazi since several congressional committees have taken part in the investigation and have turned up nothing. Never mind the fact that the fundamental questions remain unanswered.

 

Why did we still have a presence in Benghazi when everyone else, including the Red Cross, was long gone? Why were rescuers not sent during the attack especially since the White House could not know how long the assault would last? Who came up with the phony “it’s the video, stupid” diversion?

 

Just skip the fact that the IRS claims a disk crash irretrievably wiped out Lerner’s emails during the critical period. Focus on her 67,000 messages provided to investigators. Be overwhelmed by what was surrendered and ignore what was withheld.

 

Obama has tried to make Washington a one-man show. It’s his way or no way at all. He must have skipped the separation of powers lecture in law school because, for a constitutional scholar, he’s all about executive disorder.