A routine labor dispute at a soft drink bottling company in Yakima, Wash., has now bubbled up to the Supreme Court, posing a serious challenge to presidential powers.
In a longer than usual oral argument Monday, justices will weigh the appointments that presidents can make during a Senate recess. It’s a unique civics test that has drawn the interest of politicians, states and business leaders, not to mention constitutional scholars of all stripes.
Background here. Essentially, in Canning v. NLRB the plaintiff argued that the President abused his power to make recess appointments when Congress was in session by effectively simply calling his appointments ‘recess.’ The DC Court of Appeals agreed, and then went on to rule “that the appointments are null because Congress never adjourned and because the vacancies did not occur during a recess” (which is a big honking hammer-blow to a traditional power of the executive branch). Should the US Supreme Court decide that the DC Court is correct to do that, Presidents in the future would be, ah, constrained in their ability to appoint ideologically-rigorous individuals to key posts.
I actually expect that the Supreme Court is going to step back a bit from that, but the odds are excellent that Canning will be upheld. In one sense, the basic issue has already been settled: the NLRB board membership has been since confirmed by the Senate. In another, the inevitable decision confirming that the Senate determines when it’s in session, not the President means THAT IT IS ABSOLUTELY VITAL THAT WE TAKE THE SENATE BACK THIS YEAR. A Republican-controlled Senate means that entire lists of liberal/progressive/Democratic appointees will get quietly circular-filed, because there’s no way that the Senate will allow them to be appointed normally and only fools fight in burning houses. I know that ‘preventing bad stuff’ isn’t as sexy as ‘implementing good stuff,’ but it’s just as vital…