THE SUPREME Court on Thursday ruled on a centerpiece conflict between the White House and Congress, slapping down President Obama’s appointment of members of the National Labor Relations Board without Senate approval. But the justices were much less far-reaching than a lower court had been, deferring to centuries of practice that allow the president some flexibility in staffing the government. The court’s judiciousness on recess appointments offers a useful model for the larger argument roiling Washington on Mr. Obama’s supposed overreaching.
“Presidents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President have recognized that recess appointments can be both necessary and appropriate in certain circumstances,” Justice Steven G. Breyer wrote for the majority. “The Court . . . must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.”
Republicans seized on the first part of the ruling as evidence that Mr. Obama is a uniquely lawless president, operating without regard for the limits on his authority to act independently of Congress. An outgrowth of this line of thinking is House Speaker John A. Boehner’s new effort to sue Mr. Obama for failing to “take care that the laws be faithfully executed,” as the Constitution demands, by issuing executive orders that bypassed Congress on a variety of issues.
In fact, Mr. Boehner and other conservatives should take a different lesson from the Roberts court: The contest between the White House and Congress is as old as the Constitution, and leaders should take care in the extent to which they denounce and take unusual measures against those engaging in that age-old fight. Blurry lines imperfectly demarcate each branch’s zones of authority. Presidents explore the gray areas for opportunities to execute their preferred policies. In this, Mr. Obama is not exceptional.
According to the American Presidency Project, Mr. Obama is on track to issue fewer executive orders per year, on average, than any president since Grover Cleveland in his first term. True, sheer numbers can’t tell the whole story. Some of Mr. Obama’s actions have strained the bounds of executive discretion. These include ending deportations of illegal immigrants brought to the United States when they were children, modifying or delaying enforcement of several provisions of the Affordable Care Act during its rollout, and allowing banks to handle money from marijuana operations in Colorado and Washington, which have no state-level prohibition on use of the drug.
The White House can make a case for each of these, just as President George W. Bush found ways to justify his secret approval of warrantless wiretapping or his prohibition on federal funding for some types of stem-cell research. They are not evidence that Mr. Obama represents some unique danger to the republic. Rather, Republicans’ sky-is-falling rhetoric suggests that they are overplaying their hand. If Congress as an institution is offended by Mr. Obama’s actions, it has ways — most powerfully through its control of appropriations — to bend them closer to its will. Mr. Boehner’s appeal for judicial intervention looks more like a way to distract from congressional paralysis than a serious effort to right some constitutional imbalance.