Today’s the Supreme Court ruled unanimously against the Obama Administration’s abuse of the recess appointment power in NLRB v. Canning. Unanimous! And not for the first time. Think back to Sackett v. EPA two years ago, where a similarly unanimous Court ruled that the EPA had grossly exceeded its legal authority, or the Utility Air Regulatory Group decision on Monday, which, although 5 – 4, held that the EPA can’t simply re-write the Clean Air Act to suit its convenience. The Obama Administration would seem to be faring poorly before the third branch.
However. . .
While the vote of the Justices in NLRB v. Canning is 9 – 0, a closer look shows that in some ways this could be considered a 5 – 4 vote. The first clue of mischief in the Court’s opinion comes from this question: Since the winner in this long-simmering case was a slam-dunk, why is this (seemingly) unanimous decision being issued so late in the Court’s current term? And given the importance of NLRB’s functions, wouldn’t there be a good reason to get the decision out sooner?
The second clue is to notice that Justice Breyer’s majority opinion—which is suspiciously long (clue #3)—is joined by the Court’s four liberals and—wait for it—flipper Anthony Kennedy. Justice Scalia offers a sharp concurrence joined by the other three conservatives, Roberts, Alito, and Thomas. Ah—now the picture begins to come into focus. While the vote of the Justices may have been unanimous as to who won the case, there was a contest inside the Court to determine which reasoning behind the decision would claim the allegiance of Justice Kennedy, and thereby set the controlling precedent for future separation of powers cases. Had Kennedy sided with Scalia instead of Breyer, we’d have a very different majority opinion.
I’ve only skimmed through Breyer’s long opinion, but on the surface he seems to be laboring mightily to preserve both the executive branch’s and judiciary’s ability to put a “broad construction” on specific clauses of the Constitution, and hence much of Breyer’s opinion is a history lesson on the use and abuse of the recess power over time, because, he thinks, the recess appointment clause is “ambiguous.” In other words, forget the constitutional text or its common sense meaning, as liberals always like to do when the Constitution gets in the way of their lust for more power. Let’s appeal to “history” and “circumstance” to keep the ruling as narrow as possible and thereby preserve the maximum latitude for blessing the general expansion of power and authority for the Administrative State. Hey, Justice Breyer more or less says, the other branches have been working this out between themselves, and we shouldn’t get in the way of this except for egregious cases, like Obama declaring the Senate in recess when the Senate thought otherwise.
Hence, Justice Scalia’s dissent not only contains a powerful contrary Originalist argument, but here and there sticks it to Justice Kennedy for his frequent confusions and inconsistencies. Like this passage:
First, the Constitution’s core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights. Indeed, “[s]o convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary.” Clinton v. City of New York, 524 U. S. 417, 450 (1998) (KENNEDY, J., concurring).
That “KENNEDY, J. concurring” is a nice little knife jab, as there were numerous other cases Scalia could have cited on this point—including the language of the Obamacare decision that Kennedy joined. But Scalia is not done:
This Court does not defer to the other branches’ resolution of such controversies; as JUSTICE KENNEDY has previously written, our role is in no way “lessened” because it might be said that “the two political branches are adjusting their own powers between themselves.”
Beyond these less-than-subtle smacks at his colleague, Scalia makes a straightforward case that the recess clause isn’t “ambiguous” at all. There’s a simple rule of thumb that can be used in these kind of cases: when the liberals have to write long and winding opinions in relatively straightforward controversies, it’s because they’re trying to obfuscate and overrun the basic principles of the Constitution.
If you like reading Supreme Court opinions, you can read the whole thing here.