Issue #290

Recess appointments: Obama loses, but the presidency mostly prevails

A loss for the president, a win for the presidency. That’s the best way to describe the Supreme Court’s landmark decision Thursday on the “recess appointment” power–the president’s power to fill government posts when the Senate isn’t in session. Technically speaking, the Obama administration lost 9-0, with not even one liberal coming to the administration’s aid. And that’s how it was pitched in the media. “A Humiliating Supreme Court Loss for Obama,” blared one typical headline. The reality is more complicated. The court’s decision in NLRB v. Noel Canning wasn’t a one-sided loss for the administration; it was in large part a win for presidential power. Nor was it really unanimous. In fact, it split 5-4 along partisan lines, with Justice Kennedy lining up with the court’s liberals and Justice Scalia writing a concurring opinion–not a dissent, for reasons explained below–fiery enough to singe off your eyebrows. Indeed, Scalia dug deep into his grab-bag of insulting adjectives for this one. The court’s lead opinion by Justice Breyer, he wrote, was a “sad,” “astonishing” “tragedy” that employed “awkward” and “absurd” reasoning. As a coup de grace, Scalia offered this typically understated assessment: “no sane constitutional theory” could proceed along the lines Breyer adopted. This is not a man who thinks his position won the day. MSNBC, 6-27-14.