The Supreme Court and Our Broken Institutions.

As many of you know, one of the outcomes produced by the World's Worst Legislative Body has been a chronically understaffed executive branch. A particularly striking example of this can be found at the National Labor Relations Board, which was forced for more than two years to work without even a three-member quorum (let alone its full five-member compliment). Today, the Supreme Court held 5 to 4 that during its two-member period, the NLRB did not have the statutory authority to operate. The majority decision was somewhat unusual, with the Court's four most conservative members joining an opinion written by its most liberal member, Justice Stevens.

As is almost always the case with a statutory-interpretation case that reaches the Supreme Court, the statute can be read both ways, and I am of two minds about what the Court did. Given that their interpretation was supported by a reasonable construction of the text, there is an undeniable appeal in Kennedy's argument on behalf of the dissenters that "Congress surely did not intend" the NLRB to remain defunct. The Court's decision will also have messy consequences in the cases where the NLRB did issue rulings during this period. 

On the other hand, I could see the Court's intervention making it clear to members of Congress that mindless obstructionism has real consequences. If New Process Steel hastens the demise of countermajoritarian rules that just don't work with modern, ideologically coherent party alignments, it will have been worth it.

Regarding whether it will have these effects -- who knows? I don't know how I would have voted in today's case. But I do know that rules that prevent presidents from adequately staffing their own administrations constitute a crazy way of structuring a government. Maybe the Supreme Court should have patched the hole in this case rather than heightening the contradictions, but the Senate's rules and norms in this area are indefensible and really do have to change.

--Scott Lemieux

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