A unanimous ruling by the Supreme Court on Thursday invalidating three of President Obama's recess appointments to the National Labor Relations Board bolsters House Speaker John Boehner's effort to sue Obama over his abuse of executive power.
Liberals have consistently dismissed as political posturing any charges by Republicans that Obama has violated the U.S. Constitution by frequently bypassing Congress. But the decision in the NLRB v. Noel Canning case shows that there’s more to the GOP’s claims than liberals care to acknowledge.
The case goes back to January 2012 when Obama, frustrated by his inability to get his pro-union nominees to the NLRB confirmed, made three appointments to the board tasked with adjudicating labor disputes – even though the U.S. Senate said it was still in session.
In a 9-0 decision authored by liberal Justice Stephen Breyer, the court held that, “the Senate is in session when it says it is” and thus, Obama “lacked the power to make the recess appointments here at issue.”
Senate Minority Leader Mitch McConnell, R-Ky., had signed on to the Noel Canning suit and hired the experienced lawyer, Miguel Estrada, to help argue the case before the Supreme Court. But what enabled it to get a hearing by the high court in the first place was that there was a clear path to meeting the legal requirement known as standing.
Anybody who wants to bring suit must be able to show some sort of injury to establish “standing” before a court will even consider the merits of the case. With Noel Canning, the standing issue was fairly straightforward, because an adverse ruling from the NLRB harmed the business, a Pepsi distributor. And because Obama illegally appointed members of the board, that decision is no longer valid.
Obama has usurped congressional authority on a number of matters, but even though they may be unconstitutional, it doesn't necessarily mean that there's a party that can meet the standing test.
For instance, take Obama’s decision to unilaterally delay the health care law’s employer mandate. Though there are a litany of examples of Obama abusing his executive authority, this is the one on which he is likely the most legally vulnerable.
First, in July 2013, the Obama administration delayed until 2015 the enforcement of Obamacare's fines on larger businesses that do not offer health insurance deemed acceptable. This directly contradicts the text of Obamacare, which clearly reads that the fines "shall apply to months beginning after December 31, 2013."
Then, this February, the administration delayed the implementation of the mandate again, only this time they went even further by effectively rewriting the law without Congress.
Under the new rules, in 2015, the penalties will only hit employers who have 100 or more workers - not 50, as clearly specified by the law. In addition, in an attempt to avoid negative headlines about businesses scaling back workers to get under the mandate threshold, employers will be forced to sign, under penalty of perjury, a statement attesting to the fact that any such layoffs were for other economic reasons and not due to the mandate.
No matter how blatantly illegal this appears, it isn’t clear who could sue. Businesses, now relieved of the mandate, would certainly have difficulty showing in court that they were harmed by the fact that the Obama administration is no longer fining them. So as a result, Obama has been hiding behind the standing complications to boldly flout Congress.
That's where Boehner enters. According to a legal theory developed by Baker Hostetler lawyer David Rivkin and Florida International University law professor Elizabeth Price Foley, “courts should permit congressional standing as a last resort to enforce the basic constitutional architecture.”
In other words, though Boehner couldn’t sue as an individual, if the theory holds up in court, it would mean that he could sue on behalf of the House of Representatives, because its constitutional role has been usurped by Obama’s lawlessness.
Even if such a lawsuit weren’t decided until late into Obama’s presidency, it would send an important signal about the limits of presidential power. And with the Noel Canning decision, the Supreme Court has signaled a willingness to push back.