‘Remarkably Myopic’?
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
It looks like the Gray Lady needs to get a new pair of spectacles. As recently as January it used the phrase “remarkably myopic” to describe an appeals court ruling against President Obama’s abuse of the recess appointment power. Not only did the Times use the word “myopic” but it also called the ruling an “absurdity.” Yet when the Supreme Court took at look at the Appeals Court decision and unfurled its eye chart, the letters on the top line spelled out “A-F-F-I-R-M-E-D.” Think the editors of the Times will be able to make out the small print on the next line? Here’s what it says: “U-n-a-n-i-m-o-u-s.”
The decision is being retailed as what the Times’ Supreme Court reporter, Adam Liptak, is calling “a significant blow to executive power.” No doubt it is that. And we wouldn’t want to gainsay Mr. Liptak, who’s a canny court chronicler. But we would be surprised if the unanimity of this decision were grounded in a hostility to executive power. That just isn’t the common denominator among such sages as Ginsburg, Alito, Sotomayor, Scalia, Kagan, Thomas, Kennedy, Breyer, and Roberts. Our guess is that the justices sensed that in sneaking three members of the NLRB through on a three day recess, President Obama was playing games.
We don’t mind noting that there was a time when we thought it was the Senate that was playing the games by using so-called “micro-sessions” to avoid a recess. We wrote about it two years ago, when Mr. Obama acted between Senate micro-sessions to put through a nominee to the Consumer Financial Protection Bureau. We thought it was the Senate that was playing with fire and asked, “Is that the way the Founders reckoned things would work.” We’d prefer to fight the CFPB on other, more fundamental constitutional grounds, such as seating the bureau within a runaway Federal Reserve. There may yet be a chance to do so.
In any event, the more such maneuvering took place between the Senate and the President, the more it started to look like it was the President playing the games. After all, the Senate is the institution best equipped to decide whether the Senate really intends to be in recess. What the Nine have just done is not so much restrict presidential power but give the Senate a great deal more credit than the President was prepared to do in deciding what its own intentions are. It’s a reflection of how divided our politics are in the current generation that our greatest jurists and lawyers are fighting over the exact meaning of the word recess. It’s a reminder of a point we have been repeating, which is that we’re in a constitutional moment.