The Patriot Post® · Recess No Playground for Obama

President Obama may blow by Congress to get his way, but he doesn’t have that luxury with the U.S. Supreme Court. That much was clear yesterday in the first of two major decisions (Hobby Lobby being the other) that could leave a lasting mark on his final term. The initial blow came earlier Thursday morning, when all nine justices blasted the White House for making a unilateral decision to seat four nominees the Senate had blocked.

When the chamber wasn’t rubber-stamping his agenda fast enough, the President took matters into his own hands in 2012 and filled vacancies to the National Labor Relations Board and Consumer Financial Protection Bureau without the Senate’s consent. The President referred to them as “recess appointments,” which would have been defensible if the Senate had actually been in recess.

It wasn’t. Conservative leaders intentionally left the chamber in “pro-forma session,” which under Senate rules, should have blocked the White House from bypassing the chamber.

It didn’t. The Justice Department advised President Obama that since the leaders were out of town, the session wasn’t a legitimate one. So, the President ignored the legislative process and pulled the trigger on a handful of new hires that would have otherwise required Senate vetting.

At the time, members were shocked. Not because Presidents don’t make recess appointments (George W. Bush made 171), but because Presidents don’t set the congressional schedule. Unfortunately, the President has about as much regard for the Senate’s rules as he has for the Constitution’s.

In the first-ever case involving recess appointments, the justices raked the administration over the coals for treating Congress not just with irreverence, but irrelevance. “Because the Senate was in session during its pro forma sessions, the president made the recess appointments before us during a break too short to count as recess,” Justice Stephen Breyer wrote in the majority opinion. “For that reason, the appointments are invalid.”

While every justice agreed, four of the originalists voted to severely limited the recess appointment powers altogether. They were overruled. Even so, the 9-0 decision was a powerful rebuke of what has become a pattern of this White House: lawlessness. This ruling of the Court should bolster support for Speaker John Boehner’s announcement Wednesday that he would seek authority from the House to take President Obama to court for his “pen and phone” strategy of change or implementing policy without Congress.

Where the Sidewalk Ends…

As if the U.S. didn’t have enough to celebrate after the World Cup, Americans had plenty to cheer about at the Supreme Court. In its second major decision of the day, pro-lifers claimed victory in the fight over sidewalk space outside abortion clinics. All nine justices, including the President’s prodigies, agreed that creating an invisible barrier between pro-lifers and clinic entrances was a ridiculous infringement on free speech rights.

Eleanor McCullen and other pro-lifers in Massachusetts often stood outside of abortion clinics and interacted with women seeking abortions in hopes of dissuading them. Eleanor would typically initiate a conversation with: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.” If a woman seems receptive, Eleanor will provide additional information. Because their polite and caring demeanor, these women have helped persuade hundreds of women to forgo abortions.

In a state like Massachusetts, plenty of liberals objected to the practice and worked to pass a law that makes it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any place, other than a hospital, where abortions are performed. Massachusetts leaders claimed their law furthered public safety and order – but the real aim was restricting pro-life speech. A transparent ploy the justices saw right through. Although the decision is narrower than we would have liked, the Court did agree that the Massachusetts law violated the First Amendment.

While this is a good result, the Court should have acknowledged that the restriction was content-based. Justice Samuel Alito certainly recognized that, writing in his own opinion: “It is clear on the face of the Massachusetts law that it discriminates based on viewpoint. Speech in favor of the clinic and its work by employees and agents is permitted; speech criticizing the clinic and its work is a crime. This is blatant viewpoint discrimination.”

As Justice Scalia (joined by Justice Thomas, and importantly, Justice Kennedy) noted in a concurring opinion, “[e]very objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.” In the end, thought, a ruling in favor of the First Amendment is better than a ruling upholding a prejudiced law. For more, check out Travis Weber’s analysis on the FRC Blog.

Judge on Marriage: Hoosier Daddy?

Unfortunately, not every court was taking its cues from the Constitution this week. A federal judge in Indiana and the Tenth Circuit Court of Appeals both used tortured reasoning to arrive at two decisions to strike down marriage laws. In perhaps the highest profile case on same-sex “marriage” in the country, a divided panel of judges sided against Utah’s amendment insisting that states can’t deprive people of the “fundamental right to marry” because they want to wed someone of the same sex. (What the Court fails to acknowledge is that no one is denied the right to marry – provided they marry someone of the opposite sex.) By a 2-1 vote, the court essentially postmarked the case to the U.S. Supreme Court where justices left the door wide open for such a challenge after last summer’s Windsor and Perry decisions.

To his credit, Justice Paul Kelly wrote a passionate dissent, warning the court of overstepping its bounds. “We should resist the temptation to become philosopher-kings, imposing our views under the guise of the Fourteenth Amendment.” Like so many other courts, the Tenth Circuit invents a right to marriage that even the Supreme Court did not find. In effect, the judges argue that Americans have the right to believe in the tradition of natural marriage – but shouldn’t be able to protect it legislatively.

“If the States are laboratories of democracy,” Kelly points out, “requiring every state to recognize same-gender unions – contrary to the views of its electorate and representatives – turns the notion of a limited national government on its head.” Meanwhile, in Indiana, voters are reaping what their legislators sowed after this year’s marriage debate, in which the legislature refused – after weeks of back-and-forth –to put the issue on the ballot. Now, in the absence of that, a federal judge has stepped in and declared himself the ultimate legislative authority, overturning the state’s marriage laws and binding the hands of any official who tries to stop him. In an unusual step, Judge Richard Young not only obliterated the Hoosiers’ definition of marriage but issued a permanent injunction against any clerk or county that refused to carry out his agenda on marriage.

Unfortunately, Indiana’s politicians set up this judicial usurpation by their political cowardice when they derailed the referendum effort. As a result, they have judges running their state and handcuffing the democratic process. While these courts can declare same-sex “marriage” legal, they can never make it right. As Governor Mike Huckabee pointed out last week at the March for Marriage here in D.C., “Judicial supremacy is a curse upon this great Republic.” The Governor is correct that the President and Congress have no obligation to follow Court decisions that defy natural law. As Augustine said, “An unjust law is no law at all.”

This is a publication of the Family Research Council. Mr. Perkins is president of FRC.