Obama Has Even Less Maneuvering Room After Getting Dissed on Recess Appointments

The high court’s ruling in NLRB v. Noel Canning is the latest setback to the president’s agenda.

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Members of the U.S. Supreme Court after President Barack Obama’s second inauguration Jan. 21, 2013, in Washington, D.C., including (clockwise from second row, left) Justices Anthony Kennedy, Samuel Alito, Elena Kagan, Clarence Thomas, Sonia Sotomayor and Chief Justice John Roberts

SAUL LOEB/AFP/Getty Images

On the political Richter scale, the Supreme Court’s decision in National Labor Relations Board v. Noel Canning—ruling President Barack Obama’s recess appointments unconstitutional—is a disaster for his administration. As he muddles through the last two years of his presidency, Thursday’s ruling might be marked as the official beginning of the end of it, with all nine justices, clearly dominated by the view of unfriendly conservatives, seeing an opening to decapitate presidential power and readily seizing it.

Technically, the ruling wasn’t all that bad … technically. It didn’t strip the president of his recess appointment powers altogether, only the power to make appointments when the Senate says it’s really not in recess or recesses that last less than 10 days.

But politically it’s bad in terms of optics and future outcomes. By deciding that Obama can’t act on blocked appointments, the court effectively sided in favor of gridlock. And the dominoes will continue falling, faster in the next two years and beyond, as our government could wind up being defined by federal agencies left impotent by the absence of nominees to lead them. And on that score, the justices should know better, since a deliberate lack of effective governance is actually unconstitutional, as well.

And coming just a day after House Speaker John Boehner (R-Ohio) declared that he’s looking to sue the president for overstepping his constitutional bounds on recent executive orders, it suggests that if he’s not careful, in the last two years of his presidency, Obama could find himself effectively demoted to commander in name only—handcuffed by Congress and unable to proactively implement his agenda.

The political pre-midterm timing is also very coincidental, if not impeccable, as the court’s and Congress’ agendas align. Because even in the current toxic political environment, Obama’s opponents’ urge to emasculate him and his ability to shape policy are both strange and troubling. And if the Senate goes fully Republican in November, we really haven’t seen anything yet.

Why liberal jurists—including Justices Sonia Sotomayor and Elena Kagan, both Obama nominees—sided with conservatives in this instance remains a mystery, particularly when you consider that conservative jurists never seem as pressed to dis a president with whom they’re ideologically aligned. Liberal jurists, on the other hand, seem intent on bending over backward to prove that they are, indeed, nonpartisan.

But either way, the ruling just makes it all the more humiliating for a president who once taught constitutional law before entering politics. In what had boiled into an acidic war of the ages between big labor and big business, nine justices said, “Sorry, but just because you’re the president doesn’t mean you can unilaterally appoint your people to key federal agencies when the Senate is in recess.”

It’s a philosophical line that’s blurred as badly as Robin Thicke stumbling over Miley Cyrus. Obama said there was a recess; Republicans and the business community disagreed. Justifiably frustrated by relentless Senate Republican shot-blocking of his judicial, departmental and diplomatic nominees, Obama simply slipped through a perfectly legal loophole. The Senate appeared as if it was in recess, creating an opportunity to seat appointments to the somewhat less well-known, but very critical, National Labor Relations Board—the federal agency that determines rules for every workplace.

It all turned into a hot political mess for the president and his increasingly fickle labor union allies. That it made its way to the Supreme Court was no surprise. But the fact that the court actually stuck its nose all in was unprecedented. They made a ruling that really didn’t have another decision to reference.

Think about it: the number of blocked presidential appointments under Obama is way disproportionate compared to those blocked under previous presidents. Failed Obama nominations account for nearly 54 percent of the 147 total blocked nominations in U.S. history.

So what we have here is a case of constitutional checks and balances gone wild. And the larger consequences are particularly acute for a president who hasn’t gained much legislatively in his second term. Thus, Obama is now a president under siege on two fronts, from the judicial and legislative branches. And with this ruling, both Congress and the Supreme Court seem happy to play tag team, leaving the president with few options—if any—to further maneuver.

Charles D. Ellison is a veteran political strategist and regular contributor to The Root. He is also Washington correspondent for the Philadelphia Tribune and chief political correspondent for Uptown magazine. Follow him on Twitter.

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