Noel Canning and Boehner Lawsuit Against Obama Executive (In)actions, on the Merits

June 27th, 2014

While I have not yet studied closely the standing issue in Speaker Boehner’s proposed lawsuit against the President, the discussion of the separation of powers in Noel Canning sheds some light on the merits of the case.

First, what satisfied Justice Breyer, and the majority, to uphold most of the recess appointment power was, as Justice Scalia called it, an adverse possession theory of precedent.

The upshot is that restricting the Clause to inter-session recesses would frustrate its purpose. It would make the President’s recess-appointment power dependent on a formalistic distinction of Senate procedure. Moreover, the President has consistently and frequently interpreted the word “recess” to apply to intra-session recesses, and has acted on that interpretation. The Senate as a body has done nothing to deny the validity of this practice for at least three-quarters of a century. And three-quarters of a century of settled practice is long enough to entitle a practice to “great weight in a proper interpretation” of the constitutional provision. The Pocket Veto Case, 279 U. S., at 689.

Presidents have been doing this for almost an entire century, and no one opposed it (Scalia would dispute this), so that practice is good enough for us. Dayenu.

A similar argument cannot be made about the President’s executive actions. And let’s be precise. It is really the President’s inaction that is at issue. His failure to enforce various immigration laws for entire classes of people, his failure to enforce the drug laws in entire states, his failure to comply with numerous provisions of Obamacare, etc. While I’m sure you can find examples of Chief Executives relying on prosecutorial discretion, I don’t think any President has taken non-enforcement of law to such an extreme.  I think Scalia’s admonition is directly on point.

The Court’s embrace of the adverse-possession theory of execu­ tive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.

So even Breyer’s functionalist argument does not bail the President out.

Second, all nine Justices seemed to agree that the Executive cannot be trusted by himself, unchecked, to correctly execute his powers. What assuaged Breyer was that the Senate has the power and ability to check the President, if they so choose. For example, they can decide not to go into recess, or hold numerous pro forma sessions. But, with the President’s failure to take care that the laws are faithfully executed, Congress has absolutely no remedy. In every respect, failure to enforce the law frustrates the workings of the elected branches. Both houses passed laws, and the President signed it. That should be the law. A president’s decision not to enforce it, because Congress won’t play nice and do what he wants is an affront to our representative republic.

Third, the Chief Justice, who joined Justice Scalia’s strong concurring opinion, seems to forcefully accept the idea that it is the Court who is responsible for enforcing the separation of powers–especially in an assertion of “unprecedented” power. Obamacare for example. Likewise for Kennedy:

That is a necessary corollary of the principle that the political branches cannot by agreement alter the constitutional structure. Plainly, then, a self­ aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, struc­ ture, and original understanding. …

As a total aside, Justice Scalia blistering dissent in Arizona v. United States, where he specifically alludes to the deferred action program, shows how he would vote on the merits.

As another aside, the President’s blatant disregard for the Administrative Procedure Act, in his myriad Obamacare rule-making-by-blogpost, must enrage Justice Breyer, and perhaps Justice Kagan.