Conventional wisdom is that the Supreme Court is divided 5 to 4 and that progressives (f/k/a liberals) need one of the conservatives to leave the Court so that they, and President Obama, will have a Court that supports what the President wants to do.
The Supreme Court’s decision yesterday in Noel Canning v. NLRB indicates that is not always the case. I wrote 2½ years ago (and again 1½ years ago) about the President’s attempt to make “recess appointments” to the National Labor Relations Board and the Consumer Financial Protection Bureau when the Senate itself said it wasn’t in recess. I’m not going to go into detail on the facts of the case here. My prior posts (at the links above) do that. The key for this post is that the Supreme Court yesterday held unanimously that the President exceeded his power in making these appointments.
Justice Breyer, writing for the Court, made it pretty clear: “The Senate is in session when it says it is, provided that, under its rules, it retains the capacity to transact Senate business.”
President Obama had based his appointments on the theory that Republicans in the Senate were being obstructionist. Therefore, in his mind, he had the right to do whatever he wanted, however he wanted, whenever he wanted. Things needed to get done and he couldn’t be held up by mere Constitutional rules.
The Supreme Court’s decision was a victory for the proposition that, in the United States, the ends do not justify the means. As I said in my post from January of 2012:
“[T]he key to our democracy, and to the protection of our democracy, is not getting policy right but following proper and agreed-upon processes and procedures.
Our liberties are not protected by those in Washington making the right choices on policies. (Fortunately.) Our liberties are protected by making sure those who govern us follow the processes and procedures that have been established for running our government. When those in power decide that their policies are important than our laws and Constitution, i.e., when they decide the ends are more important than the means, our democracy is endangered.”
The Supreme Court’s decision yesterday is a strong affirmation of this proposition.
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