I have a more extensive analysis up at the Prospect. In theory, courts should play a role in facilitating the operation of a democratic system; here, they’re going out of their way to make government substantially more dysfunctional. Of course, this is the point:
It’s not a coincidence that three reactionary Republican appointees on the D.C. Circuit reached this strained and illogical result. As Adam Serwer of Mother Jones and Brad Plumer of The Washington Post explain in detail, the implications of this decision are potentially far-reaching, starting with retroactively invalidating years of NLRB decisions and effectively destroying the new Consumer Financial Protection Bureau. For Republicans like Sentelle, of course, this is a feature not a bug—an utterly dysfunctional government that is unable to protect workers or consumers suits the contemporary Republican Party just fine. If they wish to realize this vision, however, they should at least do it by winning elections, not through judicial opinions that casually sweep away more than a century of established practice with arguments that read like a cruel parody of originalism.
“The Constitution,” notes the legal scholar Akhil Amar, “is a practical document, it’s designed to work.” The Constitution of contemporary Republicans like Sentelle, conversely, is designed not to work. Far from addressing the increasing cycles of dysfunction that increasingly prevents administrations of both parties from being properly staffed, the D.C. Circuit’s decision Friday actually gives the minority faction of one house of Congress greater power to mindlessly throw monkey wrenches into the proper functioning of government, while taking from the president the tool the framers had the foresight to give him in response.