OVERNIGHT REGULATION: Obama’s Supreme rebuke

Thursday’s big winners: Sen. Mitch McConnell, Germany and abortion rights opponents. Losers: President Obama, Team U.S.A and Martha Coakley.

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THE BIG STORY:

RECESS, OVER: The Supreme Court’s finding that Obama improperly sidestepped Congress two years ago to make a series of appointments is reverberating throughout Washington, as business groups and political operatives scramble to understand its implications.

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It’s clear, however that the ruling is a blow to both the president and the presidency, as the court unanimously concluded that Obama’s installation of a trio of members on the National Labor Relations Board violated the Constitution.

At least symbolically, the ruling is a win for the legislative branch, with the court finding that, “the Senate is in session when it says that it is.” http://j.mp/1mwZO7J

-- Three takeaways from the landmark ruling:

1) Republicans are downright giddy about the ruling, which they view as validation of their charges that Obama has regularly exceeded his authority. 

But, the decision doesn’t change the fact Obama can still have his way, at least nominee-wise, post-nuclear Senate. Under new rules pushed through by Senate Democrats, a simple majority is all that’s needed to advance most nominees. 

The true weight of the decision would be felt, however, if the Senate flips in November or anytime in the future when the president’s party does not control the Senate. In those events, the upper chamber would retain power to block presidential recess appointments, via pro-forma sessions.

2) Hundreds of NLRB decisions could need to be revisited. The agency, which under Obama has been a magnet for GOP criticism, may have to return to reaffirm decisions made during the period when the labor board contained members appointed in violation of the Constitution. Republicans and business groups are hoping that could take the NLRB away from what they view as an activist agenda.

3) The court almost went further. While the holding that Obama overstepped was unanimous, the court was bitterly divided over when the chief executive should be empowered to fill vacancies. Justice Stephen Breyer, along with the court’s other liberals and frequent swing vote Justice Anthony Kennedy, cobbled together the narrowest of majorities affirming the president’s broad authority to make recess appointments. Justice Antonin Scalia and the other conservatives would have further limited the power to intersession recesses – and only then when positions become vacant during that recess period.

 

ON TAP FOR FRIDAY (and beyond):

The great congressional exodus has begun, as lawmakers race to the airports to begin their Fourth of July Recess. Both the House and Senate will be dark. Obama will be giving an address on the economy in Minneapolis before returning to Washington to attend the Marine Corps parade at Barracks Row, a Friday night tradition in the summertime.

Elsewhere around town:

-The National Labor Relations Board will begin grappling with Thursday’s decision.

Says NLRB Chairman Mark Gaston Pearce:

“We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated. Today, the National Labor Relations Board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act. The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.”

-The Small Business Administration (SBA) is holding its annual board meeting to “discuss matters of concern to small businesses relating to enforcement activities of agencies and to report on substantiated instances of excessive enforcement actions.”  The second day of a two-day session will focus on the regulations in the pipeline at the Office Of Information and Regulatory Affairs (OIRA): http://j.mp/1qJHkDB

-And then there were two:

The Supreme Court will issue the final two rulings of its term, both in major cases with big political stakes.  They are:

Harris v. Quinn: In which the court is weighing a challenge that could undermine public unions.

Sebelius v. Hobby Lobby:  A challenge to the Affordable Care Act’s birth control mandate represents ObamaCare’s second foray before the high court: http://j.mp/1fdkUa2

 

TOMORROW'S REGS TODAY:

The Obama administration plans to issue 234 new regulations, proposed rules, notices and other administrative actions in Friday's edition of the Federal Register.

-The Department of Health and Human Services (HHS) will issue new safety guidelines for nanomaterials in cosmetics such as sunscreen, anti-aging cream, shampoo, and toothpaste. http://j.mp/1iz09Y2

The agency will also take a look at creating new safety guidelines for nanomaterials in animal food. http://j.mp/1iKwHhv

Nanomaterials are tiny particles that are scientifically manufactured.

"This guidance is intended to help industry identify the potential safety issues of nanomaterials in cosmetic products and develop a framework for evaluating them," the agency wrote.

-The Federal Motor Carrier Safety Administration (FMCSA) will lift certain restrictions for some truck drivers who are transporting fireworks for celebrations on Independence Day. These truck drivers will be allowed to drive extended hours. http://j.mp/1qfvQI4

-The Coast Guard will relax the reporting requirements for offshore drilling companies, which will no longer be responsible for notifying the agency each time they change spots on the outer continental shelf. http://j.mp/1nIpXhF

-The Department of Labor will take a look at a new rule that would require private companies to grant gay employees unpaid leave to care for their same-sex spouses when they suffer from a serious health condition -- the same rule that already applies to employees in traditional marriages. http://j.mp/UN7Mip

-The Environmental Protection Agency (EPA) will correct mistakes it made in a rule establishing alternative test procedures for drinking water. http://j.mp/1sIuHL4

 

NEWS RIGHT NOW:

VICTORY LAP:  Senate Republicans are still gloating from their victory over the Obama administration on Thursday, calling the Supreme Court's ruling in Noel Canning v. NLRB a "rebuke" of the president's executive authority. They also said their Democratic colleagues "should be embarrassed." http://j.mp/VrHe7b

HAD TO BE DONE: But AFL-CIO President Richard Trumka said President Obama "did the right thing" when he circumvented the Senate to make three controversial recess appointments to the NLRB in January 2012. http://j.mp/1mioAUf

IMPACT ON CFPB? Meanwhile, House Republicans are using the Supreme Court ruling to take another shot at the Consumer Financial Protection Bureau (CFPB), The Hill's Peter Schroeder reports. House Financial Services Committee Chairman Jeb Hensarling is questioning whether thousands of CFPB cases should also be thrown out, because they were made with a director at the helm who was recess appointed on the same day as the NLRB appointees. http://j.mp/1pEUhLp

JUST TO BE SAFE: But CFPB Director Richard Cordray already reaffirmed all of those decisions as soon as he was confirmed by the Senate last summer for a second term, The Hill's Peter Schroeder reports. http://j.mp/1o7AEfg

SMOKE AND MIRRORS: Senate Democrats say they are disappointed to learn the White House watered down the Food and Drug Administration's (FDA) e-cigarette regulations before they were released in April. Sen. Sherrod Brown (Ohio) called the move "deeply concerning." http://j.mp/1m1ITLr

OBAMACARE: The Centers for Medicare and Medicaid Services is looking at a new rule that would automatically enroll people so they can keep their ObamaCare coverage even after their current plan ends, The Hill's Ferdous Al-Faruque reports. http://j.mp/1lsEq3d

ABORTION: The Supreme Court on Thursday struck down a Massachusetts law prohibiting protesters from getting too close to abortion clinics, because it said the rule was unconstitutional. In the case, McCullen v. Coakley, a protester sued Massachusetts Attorney General Martha Coakley over the law. http://j.mp/1iJQFJb

SODA BAN: The infamous Bloomberg soda ban remains unconstitutional, as New York's top court upheld a lower court ruling Thursday. http://j.mp/1lsETSY

DRILLING: House Republicans have passed a bill to increase offshore energy production. http://j.mp/1m1P427

BLACK HAWK DOWN! The Fish and Wildlife Service (FWS) will allow a small number of endangered golden eagles to be killed at a California wind farm, The Hill's Timothy Cama reports. http://j.mp/UNpvpV

 

BY THE NUMBERS:

440: An early estimate of the number of NLRB decisions that could need to be revisited, following Thursday’s decision.

10: The number of days of recess that must pass before a president may generally consider using the Recess Appointment Clause of the Constitution, under a threshold proposed by the majority opinion.

9: The number of justices who agreed that Obama overstepped in making the NLRB appointments.

4: The number who believed the court should go further to rein in presidential recess appointment powers.  

0: The number of goals scored by the American team in Thursday’s bitter 0-1 defeat at the hands (eh, feet) of Germany.

 

QUOTE OF THE DAY:

“The president made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even bothering to wait for its advice and consent. A unanimous Supreme Court has rejected this brazen power-grab.” – McConnell, who intervened in the recess appointments case on behalf of Senate Republicans.

 

We’ll endeavor to stay on top of these and other stories throughout the week, so check The Hill’s Regulation page early and often for the latest. And send any comments, complaints or regulatory news tips our way, via bgoad@thehill.com or tdevaney@thehill.com. And follow us at @ben_goad and @timdevaney.

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