“Supreme Court sharply limits presidential power on recess appointments.” Thus read the headline in the Los Angeles Times after the High Court’s decision in National Labor Relations Board v. Canning. Applying its spin to the decision, National Review opined that “the Court rejected the administration’s power grab on recess appointments” and clarified when a recess of the Senate has taken place. NR further crowed that “the Obama administration’s position has been defeated in at least 13—thirteen—cases before the Supreme Court since January 2012 that were unanimous decisions.”
From the headlines and commentary, one would think that executive power is on the wane, the administration is on the ropes, and the Constitution has once again been vindicated by the nine sages of First Street.
The actual opinion in Canning tells a different story—one that is all too familiar and that has been ignored in media coverage. Under the pretext of limiting power, the Court has further aggrandized itself and brazenly rewritten constitutional provisions to suit its own tastes.
Canning dealt with presidential appointments to the National Labor Relations Board. Rather than obtaining the advice and consent of the Senate as the Constitution requires in the typical case, the President...