Now the Supreme Court will weigh in on Obama’s power play to stock the National Labor Relations Board.

By David B. Rivkin Jr. and Lee A. Casey

Later this month the Supreme Court will hear a case that should resolve how much latitude presidents have to make recess appointments to federal offices that otherwise require Senate confirmation. The boundary of this power has never been decided by the high court. Yet the entire scheme of the U.S. Constitution—which is based on a separation of powers, enforced through checks and balances to safeguard individual liberty—is at stake.

Noel Canning v. NLRB involves several recess appointments President Obama made to the National Labor Relations Board on Jan. 4, 2012. The federal appeals court in Washington, D.C., correctly held that these appointments were unconstitutional both because they filled vacancies when the Senate was not in a true “recess” between Congress’s annual sessions, and because the vacancies had not actually opened up during the purported recess.

Article II, Section 2 of the Constitution states that “The president shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The federal appellate court’s decision hewed closely to the text and original meaning of this so-called recess appointments clause. Yet the ruling stunned many constitutional lawyers. That’s because the original limitations on the president’s power to make these appointments had long since been effectively discarded.

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Time to end class-action settlements that only reward lawyers, not plaintiffs.

The Supreme Court will soon decide whether to hear a case that could determine the future of particularly abusive class-action settlements. Not abusive in the usual sense, where a class of injured plaintiffs is awarded an exorbitant amount. Instead, these settlements are abusive in that absolutely nothing goes to the injured plaintiffs. At issue is whether federal courts may approve such agreements rewarding lawyers and defendants, leaving plaintiffs out in the cold.

The case is Marek v. Lane, and it arose out of Facebook’s notorious 2007 “Beacon” program. Beacon gathered and published information about Facebook users’ other Internet activities as an advertising and marketing tool, invading the privacy of millions. It may also have violated a number of state and federal laws, including the 1988 Video Privacy Protection Act, which includes a liquidated-damages provision of $2,500 for each offense. A class-action suit was filed in 2008 on behalf of as many as 3.6 million injured social networkers.

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There should be less federal regulation of political speech.

By David B. Rivkin Jr. and Lee A. Casey

President Obama and his political allies have dismissed as “phony scandals” mounting evidence that the Internal Revenue Service and other federal agencies hindered and punished conservative advocacy groups. Meanwhile, efforts are under way to impose even more regulation on core political speech.

The government’s abuses are very real, but the scandal’s lessons are not appreciated: The federal regulation of political speech has already gone further than can be justified by existing law, let alone the Constitution.

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By: David B. Rivkin Jr. and Lee A. Casey

President Obama’s announcement on July 2 that he is suspending the Affordable Care Act’s employer health-insurance mandate may well have exposed his actions to judicial review—even though that is clearly what he sought to avoid.

The health-care reform law’s employer mandate requires businesses with more than 50 employees to provide a congressionally prescribed set of health-insurance benefits or pay a penalty calculated at about $2,000 per employee. The law was to take effect on Jan. 1, 2014, but Mr. Obama has “postponed” its application until 2015. His aim, the administration said, was to give employers more time to comply with the new rules. But it was also seen as a way to avoid paying at least part of ObamaCare’s mounting political price in the 2014 congressional elections.

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By David B. Rivkin and Lee A. Casey

The unfolding IRS scandal is a symptom, not the disease.For decades, campaign-finance reform zealots have sought to limit core political speech through spending limits and disclosure requirements. More recently, they have claimed that it is wrong and dangerous for tax-exempt entities to engage in political speech.

The Obama administration shares these views, especially when conservative, small-government organizations are involved, and the IRS clearly got the message. While the agency must be investigated and reformed, the ultimate cure for these abuses is to unshackle political speech by all groups, including tax-exempt ones, from arbitrary and unconstitutional government regulation.

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News must often be gathered by confidential sources, or not at all. That confidentiality must be uniformly protected.

By David B. Rivkin Jr. and Lee A. Casey

A Colorado judge’s threatened contempt sanctions against Fox News investigative reporter Jana Winter—who refuses to reveal a confidential news source—has refocused public attention on how journalists operate.

News must often be gathered from confidential sources, or not at all. Given how vital is the freedom of the press in a democracy, that confidentiality must be maintained. It is time that Congress recognize this and enact legislation that enables journalists to protect their confidential sources and newsgathering materials.

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