All-Star Panel: Reaction to Supreme Court decision on recess appointments

This is a rush transcript from "Special Report," June 26, 2014. This copy may not be in its final form and may be updated.


SEN. MIKE LEE, R - UT: This is a great day for Americans. This is a great day for constitutionally limited government. The court said the president doesn't have the power to decide when the Senate is in session. Only the Senate can decide that. And when the Senate decides that it is not in recess, the president may not issue a recess appointment.


CHRIS WALLACE, ANCHOR: Republican Senator Mike Lee applauding today's Supreme Court decision limiting President Obama's authority to make recess appointments. Let's bring in our panel, Ron Fournier of The National Journal, Nina Easton, columnist for Fortune magazine, and syndicated columnist Charles Krauthammer.

So the court ruled that presidents do have the right to make recess appointments. But Justice Stephen Breyer writing the majority decision said it has to be a real Senate recess of -- I don't know how he came up with this number -- 10 days. And the court threw out the appointment of three members to the National Labor Relations Board because the Senate was then in its act where it held 30-second sessions every three days. When you add it all up, Ron, how big a defeat for President Obama?

RON FOURNIER, THE NATIONAL JOURNAL: It's a pretty big defeat. It could have been bigger. This was an awfully reckless thing he did. The Supreme Court basically argued that the Senate makes its rules, not the President of the United States. I learned that in third grades civics class and the president should have known better -- he's a constitutional attorney. And he's lucky and future presidents are lucky that the Supreme Court didn't go even further and undermine the president's ability, legitimate ability at times to fill in in the case of a recess appointment.

And one interesting part of the provision, they literally ruled that the recess appointment should be used only in the cases -- in just cases. It should not be used as a get-around to get around another branch of government which the president clearly was doing here.

WALLACE: Of course, at this point the president doesn't need recess appointments anymore because Senate Democrats changed the rules so it takes a simple majority to -- and they're in control of the Senate, obviously -- to confirm executive appointments. So given that, how much practical effect does this really have on President Obama?

NINA EASTON, COLUMNIST, FORTUNE MAGAZINE: Well, right now it doesn't have a lot because of exactly what you said. But if the Republicans take control of the Senate, it will take away a powerful tool for the president to do these recess appointments.

WALLACE: But he couldn't get that simple majority.

EASTON: Yes, exactly. The court is saying recess appointments are OK, but you can't define the recess.

I think this has added political resonance, though, because this is -- has to do with the National Labor Relations Board which is very much ground zero for the president's hope of expanding union organizing and the ability of unions to organize. And that battle has been fought out within this agency, which is a five-member board, that is now split three to two in favor of Obama. So the practical effect of this decision will also be that about 100 decisions affecting about 600 companies will have to be re-decided. Yes, they'll be re-decided right now by more pro-Obama, pro-union forces, but come December, one of those seats is back up and open. And so that balance, that will come -- watch that seat, because that will go back in the balance and the question of whether unions have more power to organize will be right back out there.

WALLACE: Charles, there were several members of the court who wanted to go, as Ron said, that the president was lucky, to go a lot further and to simply restrict the president's ability to make almost any recess appointments.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: But I think it goes beyond the issue of recess appointments and beyond the effect on labor relations in the balance between labor and business. I think this is a stinging rebuke to Obama overreach in general and I think it will have implications for other cases.

Remember the argument the Democrats have made up to now, with the Boehner lawsuit which is going to challenge overreach and other areas, this is simply a partisan attack on the president. But the court is saying this is a constitutional travesty, what happened in this case. And the way it was written, remember, it was written by a liberal majority, by Justice Breyer. He wrote the opinion. And the way he struck down the appointment by the president is to say, the Senate is in session when it says it is in session. A tautology, a truism, something that, as Ron says, a three-year-old knows, which means the Senate is in recess when the Senate says it is in recess. And the implication is here's a president who went against that truism, that tautology, and not only wantonly appointed all these guys who gave dozens of decisions over a year and a half, but then defended it all the way to the Supreme Court. This is ridiculous. This is the 12th time that the administration has been shut out nine-nothing in challenges in the Supreme Court, which is unprecedented. Coming after a rebuke earlier in the week on the EPA overreach, I think this bodes well for the Boehner lawsuit challenging the president's overreach.

WALLACE: I'm going to pick up on that, Ron, because this comes just the day after House Speaker Boehner announced that sometime probably next month he is going to bring to the floor of the House, and with the Republican majority, they're going to pass it, a move to sue the president for executive action -- he hasn't been specific yet -- for some executive actions. And in fact, today, the Senate Republican -- the Senate Republican Leader Mitch McConnell talked about this as well. Take a look.


SEN. MITCH MCCONNELL, R-KY, MINORITY LEADER: The administration's tendency to abide only by the laws it likes represents a disturbing and dangerous threat to the rule of law. That's true whether we're talking about recess appointments or ObamaCare.


WALLACE: How does this fit into, some would say, a larger pattern of executive overreach by this president?

FOURNIER: Yeah, we obviously don't know how the Supreme Court will rule if and when the Boehner case and the ACA, ObamaCare stuff gets to them. But this does fit into the broader political frame the president has, which is if I can't bend the will of Congress exactly the way I want it to do under my conditions, I'm going to use the pen and pad, the pen and phone to have my will honor government.

Well, the Supreme Court, at least in this case said, that pen and pad is not a rubber stamp. You can't just do whatever you want and impose your will by fiat. I have to wonder if this was the court -- especially since it was a Breyer opinion, sending a shot across the bow of the President of the United States.

WALLACE: But you know, Nina, there's a double-edged sword here. Just as the recess appointments become more of an issue if Republicans take over the Senate, and they can block by a simple majority the president's nominees, at some point we're going to end up with a Republican president. And if you get all these rulings and lawsuits restricting executive authority, are Republican presidents in the future going to like that?

EASTON: Yeah, all of these issues cut both ways. The nuclear option cuts both ways. That is going to be something a Republican Senate is going to have to address. So absolutely it cuts both ways. On the Boehner suit, I think this suggests that suit could have traction, this ruling. But the big legal question is whether Congress really has standing to sue the president. And I think that's the first thing that we're going to be watching for on that case.

WALLACE: Very briefly, 30 seconds, your thoughts?

KRAUTHAMMER: Look, I think of course it's going to restrict a Republican president, and it should. As Scalia wrote in his concurring opinion, what's at stake here is not even the prerogatives of the Senate. What's at stake here is the liberty of the citizenry. Even if the Senate over the years had conceded authority, given up its authority to the president, it has to be stopped. It isn't allowed to do that. The reason that we have separation of powers is to prevent tyranny. So we should apply it to both parties. And they're going to have to like it and love it if they disagree with its effect on policy. This isn't about policy. This is about the structure of the Constitution.

WALLACE: Next up, how much are Bill and Hillary Clinton really worth, and does it matter?

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