The Supreme Court May Issue A Ruling That Makes The Government Even More Dysfunctional

Stephen Breyer and Antonin Scalia Supreme Court CongressAssociated PressSupreme Court Justices Stephen Breyer, left, and Antonin Scalia testify on Capitol Hill in Washington, Wednesday, Oct. 5, 2011.

The New Yorker’s Jeffrey Toobin
has a new columnon a seemingly arcane Supreme Court case he says could bring the government to a new level of paralysis and dysfunction.

“The current spectacle of government dysfunction in Washington could scarcely be worse, right? Wrong, actually,” he writes.

The case that could make things worse, National Labour Relations Board V. Canning, seeks to limit the president’s ability to make appointments of federal officials while the Senate is in recess. It is scheduled for some time this term.

Obama has used this power to get around the inevitable stalemate he encounters when he tries to get the Senate to approve his appointments to agencies like the NLRB or SEC.

We can expect to see an even more dysfunctional federal government if the Supreme Court limits the president’s ability to make these appointments, Toobin predicts. Republicans have abused the filibuster at every turn to block Obama’s nominees. If the court limits his ability to make recess appointments, he’ll have a very tough time appointing officials to federal agencies — especially ones Republicans hate like the NLRB.

“The budget deadlock has frozen the current operations of existing government agencies,” Toobin writes, “but the case before the justices will determine whether some of these agencies will exist at all.”

In NRLB v. Canning, the Supreme Court will decide whether the president can make recess appointments during brief Senate breaks or only during the longer, formal break between sessions that happens once a year, The New York Times reports.

Supreme Court veteran Carter Phillips has called the recess appointments fight the court’s most important case this term.

“It is a very interesting constitutional problem involving the fundamental relationship among the branches of the federal government and a practice that has been around a long time,” he told BI in an email message. “If unconstitutional it will probably mean the end of recess appointments, which makes it a landmark political change.”

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