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Supreme Court Reins in the Obama Administration

July 8, 2014

Last month, the Supreme Court unanimously rebuked President Obama for violating the Constitution’s separation of powers in the appointment process. The high court’s decision was not the only ruling from last term to repudiate the governing philosophy of the administration. It also struck down a law that, while not directly admonishing the administration, dealt a blow to its political allies – public-sector unions.

NLRB v. Noel Canning

In a 9-0 opinion authored by liberal Justice Stephen Breyer, the court held that the president acted unconstitutionally when he bypassed the Senate and appointed three members to the National Labor Relations Board. The decision reaffirmed that the Senate controls the procedure and manner of carrying out its constitutionally assigned advice and consent role, not the president.


“[T]he true import of Noel Canning is that even liberal Justices are alarmed that Mr. Obama’s executive law-making is visiting real damage on the Constitution.” – The Wall Street Journal, June 26, 2014


The decision allows the president to make recess appointments during a recess of the Senate, so long as it is of a “sufficient length.” In laying out this standard, the court noted that a recess of less than 10 days would be too short for the president to be allowed to act on his own. Under the court’s decision, Congress retains its authority to check the president’s recess appointment power by conducting pro forma sessions.

Burwell v. Hobby Lobby

In a 5-4 decision authored by Justice Alito, the court struck down an Obama administration requirement that employers provide certain contraception for employees. The court held that the mandate violates the Religious Freedom Restoration Act – a law signed by President Clinton and supported by many current members of Congress. RFRA forbids the government from substantially burdening a person’s exercise of religion, unless doing so is the least restrictive way to advance a compelling government interest. The contraception mandate in this case imposed a substantial burden on the free exercise of religion of businesses organized as “closely held corporations.” The court held that closely held corporations are “persons” under the law and, as such, they can exercise religion, just like non-profit organizations can.

The Obama administration asserted that the government had a compelling interest in creating the mandate because such insurance coverage requirements promote public health and gender equality. But the court found that these interests were not pursued through the least restrictive means. Because the administration had already provided exemptions to this requirement for other insurance plans and could accommodate religious non-profit corporations that objected to the requirement, it failed the law’s least restrictive means test.

Importantly, the majority opinion was careful to note that its decision “did not hold … that for-profit corporations and other commercial enterprises can ‘opt out of any law ... they judge incompatible with their sincerely held religious beliefs.’” The compelling state interest test would still apply, just as was done in this case.

The White House Press Secretary responded, “we disagree and the constitutional lawyer in the Oval Office disagrees with that conclusion from the Supreme Court.” And yesterday, Senate Majority Leader Reid said, “we’re going to do something about the Hobby Lobby legislation.” Meanwhile, the president’s health care law continues to face legal questions – the latest is Halbig v. Burwell, in which the question of subsidies in state exchanges is at issue.

Harris v. Quinn

In another 5-4 decision authored by Justice Alito, the court invalidated an Illinois program that designated Medicaid home-care providers as state employees. The program meant that they qualified as public sector employees and would be required to pay union fees. The court upheld the challenge to the union dues requirement by some of the home-care providers on the grounds that it violated their First Amendment rights. Specifically, the court found that the employees were merely partial public employees because their employment is patient-based, unlike traditional state employees.


“If we accepted Illinois’ argument, we would approve an unprecedented violation of the bedrock principle that ... no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.” – Harris v. Quinn


The court concluded that the unionization requirement in question did not serve a compelling state interest that could not be achieved through less restrictive means.