WASHINGTON – With the Supreme Court delivering a unanimous blow to a case of what critics call President Obama’s executive power overreach, one might expect nearly all conservatives to praise the ruling immediately.
But that didn’t happen because the unanimous decision, curiously, was also a split decision.
The high court decided that the president went too far in making recess appointments to the National Labor Relations Board, or NLRB, while Congress was still in session on Jan. 3, 2012, but the panel’s four conservative justices issued a concurring opinion that the majority opinion did not go far enough.
That unanimous, but split, decision caused some lawmakers to hesitate before commenting, while they studied the ruling.
One of those not hesitating for a moment was constitutional law expert Sen. Mike Lee, R-Utah, who, in an exclusive interview with WND, called Thursday’s ruling “fantastic.”
“I am thrilled that all nine members of the Supreme Court, including those appointed by this president, agreed that the president acted unconstitutionally, in this case.”
The senator noted that, although past presidents have made recess appointments, the appointments Obama attempted to make were different.
Lee maintained the president attempted to change the Senate’s rules and define for himself when that body is in session and when it is in recess.
The senator noted the Supreme Court unanimously agreed that the Senate clearly was not in recess, according to its own rules, when the president made recess appointments to the NLRB.
Lee called it a reminder that “ours is not a government of one,” and “a wake up call for all of us that we’ve got an executive branch that is rather openly flouting the Constitution, and it needs to stop.”
“When the president made these unconstitutional recess appointments, he took something that wasn’t his,” he said. “It’s a power that doesn’t belong to him. It belongs to someone else. It belongs to three million Americans who have the right to have their elected senators exercise the confirmation power of the Senate.”
What other conservative lawmakers said immediately following the ruling:
Rep. Michelle Bachmann, R-Minn., told WND she was glad the decision upheld limits on executive power, and rejoiced that, “Finally someone said no to President Obama’s freewheeling unconstitutional style.”
Rep. Trey Gowdy, R-S.C., was characteristically both scholarly and scathing, saying, “For the president, who once taught constitutional law, to force the Supreme Court to do what the plain language of the Constitution makes clear is not leadership.
“Even a cursory understanding of the Constitution dictates the conclusion that the definition of ‘recess’ does not change depending upon which political party is in power, which is why the Supreme Court ruled 9-0.
“The Constitution is not a tool to be wielded for political expediency. It is the supreme law of the land and the President’s responsibility is to take care that it is followed, not outmaneuvered,” the South Carolinian concluded.
Sen. Ted Cruz, R-Texas said, “President Obama ignored the plain text of the Constitution and attempted to make unilateral recess appointments, circumventing the checks and balances of confirmation, when the Senate was not, in fact, in recess.”
A spokesman for Rep. Duncan Hunter, R-Calif., told WND, “This was an easy decision. So easy that it shows either the ignorance of the Administration or it’s willful intent to ignore the law. Either way, the administration deserved the ruling they got.”
A representative for Sen. Deb Fischer, R-Neb., told WND she “welcomes this decision, which reaffirms the Senate’s constitutional authority and check on the president’s power.”
Rep. Steve Stockman, R-Texas called it a “blow for the imperial presidency,” telling WND, “Obama is not a king or dictator. He is an executive accountable to Congress and limited by the Constitution.”
“Obama’s imperial attitude is a threat to all Americans. Congress must re-establish the Constitution’s limits on this president, and all future presidents,” he added.
Sen. Jim Inhofe, R-Okla., said the ruling “confirmed the president’s disregard for the law when he skirted Congress and made unconstitutional appointments in January 2012 while the Senate remained in session.
“The president knew his controversial nominees did not have the support needed to pass the Senate. He took matters into his own hands and ignored the will of the people, much like he has done on a number of other issues during his presidency from costly cap-and-trade regulations to the roll-out of Obamacare,” the Oklahoman concluded.
As a constitutional law expert, Lee is one of the most qualified lawmakers to comment on the case.
After graduating from BYU law school in 1997, Lee clerked for the U.S. District Court for the District of Utah, then clerked with future Supreme Court Justice Judge Samuel A. Alito Jr. on the U.S. Court of Appeals for the Third Circuit.
Lee spent several years as an attorney with the law firm Sidley & Austin specializing in appellate and Supreme Court litigation, then served as an assistant U.S. attorney in Salt Lake City arguing cases before the U.S. Court of Appeals for the Tenth Circuit.
While growing up, he would often discuss varied aspects of judicial and constitutional doctrine around the kitchen table with his father, Rex Lee, who served as the solicitor general under President Ronald Reagan.
Lee explained to WND why he agreed with both the unanimous majority opinion and the concurring opinion of Justice Scalia, which was joined by Justices Alioto, Thomas and Chief Justice Roberts.
The recess appointment power does exist in the Constitution, but the question is: When is the Senate in recess?
The majority found the Senate is still in session, as long as it doesn’t adjourn for more than 10 days. The court also found, for the purposes of measuring the 10-day period, the pro forma sessions the Senate holds from time to time do count as being in session.
So, Lee explained, the Senate had formally opened the second session of Congress in January 2012, when, 24 hours later, “The president ignored the Constitution and attempted to circumvent the Senate by unilaterally making important appointments to controversial executive agencies.”
Even though the Supreme Court unanimously found the appointments unconstitutional, the four conservative justices saw an even tighter interpretation of when Congress is in session.
They saw the Senate as in recess only between formal sessions of Congress, not just when Congress is temporarily adjourned.
Lee said he agreed with that because, historically, a Congress has been defined as lasting two years, with year one as the first session and year two as the second.
But, he also offered, the difference in the reasoning between the two opinions had no practical consequences for this case.
That’s because the Senate remains in control of its own rules and decides when it is, or is not, in session.
The Constitution does give the president the power to make recess appointments, but, according to Thursday’s ruling, as long as the Senate is in session once every 10 days, then the president’s recess appointment power isn’t triggered.
So, where did the 10-day rule adopted by the majority opinion come from?
“They just came up with that,” succinctly explained Lee.
The majority opinion claims it is rooted in historical tradition and practice, the senator noted, but, “As the concurring opinion points out, that has no grounding or foundation in the text of the Constitution at all.”
In fact, he added, “The historical precedents are not all that clear, other than the fact that this is the first time in history when a president has been so bold, so lawless, I would add, as to purport to make recess appointments at a time when the Senate, according to its own rules, was not in recess.”
The constitutional law expert called the ruling a reminder of the need in our federal system for checks and balances.
“By some counts, this marks the 12th occasion in which the Supreme Court has unanimously rejected some kind of significant overreach by the president. And, I would point out, that doesn’t mean there have been only 12 instances of overreach. It just means there have been 12 cases that made it all the way through to the Supreme Court. But there are many cases that have yet to make their way into the court system at all.”
Those cases, he said, by their very nature, might not make it into the court system at all, so it is important for Congress to call out instances of executive overreach as they arise. That’s why he was so quick to cite this instance, on the day it happened, even though, he says, “a lot of people disagreed with me.”
“From Day One, I said, ‘This is wrong. We can’t let him get away with this.'”
Follow Garth Kant on Twitter @DCgarth