How A Nixon-Appointed Supreme Court Justice Set The Stage For Ruling Against Obama’s Recess Appointments

Late last month the U.S. Court of Appeals for the D.C. Circuit, considered the second-most powerful court in the country after the United States Supreme Court, ruled that recess appointments made by President Obama to the National Labor Relations Board were unconstitutional. The Court found that although the Senate was technically in recess at the time of the appointments, ordinarily giving the president the constitutional authority to do so, because they sent a single Senator into the chamber to gavel in a pro-forma session, that the appointments made during one of those periods were invalid.

Although the practice of gaveling was started by Democrats under George W. Bush's presidency, in 2004 the Eleventh Circuit Court of Appeals found in Evans v. Stephens that:

[W]hat we understand to be the main purpose of the Recess Appointments Clause—to enable the President to fill vacancies to assure the proper functioning of our government—supports reading both intrasession recesses and intersession recesses as within the correct scope of the Clause. That an intersession recess might be shorter than an intrasession recess is entirely possible.

They also found that this interpretation was supported by more than 200 years of precedent, in hundreds of recess appointments made by presidents all the way back to George Washington.

Not satisfied with hundreds of years of precedent and court rulings upholding the practice of recess appointments, Republicans found President Obama's appointments "too labor-oriented," and a PepsiCo distributor, Noel Canning, unhappy with a ruling against them in a union dispute, rather than appealing the ruling itself, challenged the legitimacy of the board in court, resulting in this recent decision. And while it's common for different courts to come to different conclusions on the same matter, there is a question here as to the legitimacy of the D.C. Court even taking this case in the first place.

As reported in The New Republic:

[O]ne thing is clear: The D.C. Circuit engaged in an extraordinary display of judicial activism when it agreed to hear the case in the first place. As the court acknowledged [pdf] at the outset, “there is a serious argument to be made against our having jurisdiction over the Constitution issues.” 

And to understand why this court, led by the conservative Judge David Sentelle, would be willing to go to such extremes to rule on this matter, it helps to understand the role played by Nixon appointee to the Supreme Court of the United States, Lewis F. Powell, Jr. in 1971. Powell advocated for stacking the courts with conservative judges, not for their more likely "strict reading" of the Constitution on the myriad issues that would come before them, but for the sole purpose of ruling in favor of business interests over those of labor.

A corporate lawyer known for representing the tobacco industry and for his membership on 11 corporate Boards of Directors, Powell shared both Nixon’s paranoia and his loathing of the opposition. Two months before his nomination (though not made public until after his confirmation), Powell wrote a lengthy screed to his friend and chairman of the Education Committee for the U.S. Chamber of Commerce, Eugene Sydnor, laying out the framework for what has become the bedrock of the conservative movement for the past 40 years.

In this document, known as “The Powell Memorandum,” he called for CEOs to stop focusing solely on “discharg[ing their] responsibility by maintaining a satisfactory growth of profits, with due regard to the corporation's public and social responsibilities,” and create within their organizations entire departments whose sole purpose was influencing “government affairs.” The Chamber, Powell recommended, should establish “a staff of highly qualified scholars in the social sciences who do believe in the system,” create a “Speaker’s Bureau” on behalf of businesses, and employ staff whose job would be to “evaluate social science textbooks, especially in economics, political science and sociology.”

We have seen the civil rights movement insist on re-writing many of the textbooks in our universities and schools. The labor unions likewise insist that textbooks be fair to the viewpoints of organized labor. … If the authors, publishers and users of textbooks know that they will be subjected — honestly, fairly and thoroughly — to review and critique by eminent scholars who believe in the American system, a return to a more rational balance can be expected.

In addition to basically infiltrating what he viewed as a left-wing-skewed education system, Powell called for the establishment of organizations that would “do the thinking, the analysis, the writing and the speaking” on behalf of business interests, staffed by people “who are thoroughly familiar with the media, and how most effectively to communicate with the public” in order to sway public opinion. Thus was borne The Cato Institute, The Heritage Foundation, the Manhattan Institute, and all the conservative “Think Tanks” we’re familiar with today.

Along with emphasis on controlling our school campuses at every level, our textbooks, and our media, a major concern of Powell’s was the “neglected opportunity in the courts.”

American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.

This brings us full-circle back to last month’s ruling by this entirely Republican Appeals court, which, in spite of their own acknowledgement that it was a stretch for them to even hear the case, found in favor of business interests over a body that was established to ensure the rights of the American people in the workplace.

According to The New York Times, the consequence of this ruling is that not only are the appointments themselves invalidated, but so, too, was the action against soft drink giant PepsiCo by the National Labor Relations Board.

Equally important, the ruling may also invalidate the appointment made by the president on the same day, of Richard Cordray as the director of the Consumer Financial Protection Bureau, a department the GOP has fought even the existence of.

There are other cases before other courts on this same issue, and there will, no doubt, be appeals by the White House. Stay tuned for more fallout from the masterful game plan set in motion more than 40 years ago by Justice Powell.