How American Government's Presumption Of Good Faith Among Opposing Parties May Yet Be Its Downfall

Sahil Kapur of TPM wrote the post that drove me to that thought:

This Supreme Court Case Could Upend The Separation Of Powers

Sahil Kapur – January 10, 2014, 6:00 AM EST

The Supreme Court is scheduled to hear oral arguments on Monday in a case with potentially dramatic long-term implications for the balance of power between the executive and legislative branches.

The legal question is whether the president may temporarily appoint people to staff executive branch agencies when Congress is not conducting business but also not technically in recess -- known as pro forma sessions. Noel Canning, a business based in Washington State, claims that actions taken against it by the National Labor Relations Board (NRLB) are invalid because they relied on the decisions of recess appointees to the board who were put in place during pro forma sessions.

A decision against the Obama administration "would overturn the long-settled understanding of the Recess Appointments Clause, upsetting the equilibrium between the political branches created by our Constitution's framers," said Elizabeth Wydra, the chief counsel for the Constitutional Accountability Center, a liberal legal advocacy group.

Wydra called the lawsuit "ahistorical and myopic."

...

It is a sign of the times we live in that a decision preserving the historical interpretation of a clause in the Constitution could be advocated by a "liberal legal advocacy group," while supposedly "conservative" elements propose to overturn that traditional interpretation. "War is peace. Freedom is slavery. Ignorance is strength" ... to which I suppose we may now add, "radicalism is conservatism."

Will this dog hunt?

US Supreme Court, 2013

There is an apparent assumption implicit in the crafting of America's Constitution that all parties are good-faith advocates for their positions and willing to abide by the legitimate result of the legal process. But in the American body politic, there is a kind of person who spends all of his (or occasionally her) efforts in attempts to game the system, sometimes with the apparent intention of tossing a spanner in the works. Unfortunately, some members of our current Supreme Court seem hellbent on assisting those individuals in matters of American government. For example, who would ever have thought up the chain of "reasoning" in Citizens United, were it not for Chief Justice John Roberts's hostility toward the framework of American government as observed by pretty much the whole political spectrum in America... until now?

Prior to the Roberts Court, prior to Citizens United, I'd have felt more confidence that such a decision as Noel Canning is seeking here would be outside the pale. But that was then, and this is now. Yes, this dog may hunt, the Roberts Court may be the hunter, and President Obama may be the prey it pursues.