The president's recess-appointment overreach

Reuters

Microphones are set up for attorneys in front of the US Supreme Court for them to talk after delivering oral arguments in a US President Barack Obama recess appointments dispute being heard by the court starting today in Washington, January 13, 2014.

Article Highlights

  • In Noel Canning, President Obama appointed officers to the NLRB to positions that came open while the Senate was in session.

    Tweet This

  • He also appointed them while the Senate was in a pro forma session.

    Tweet This

  • Critics have rightly attacked President Obama for aggrandizing presidential power.

    Tweet This

Today, the Supreme Court heard oral arguments in Noel Canning v. NLRB in which the D.C. Circuit struck down President Obama’s recess appointments to the National Labor Relations Board. The question is whether the president’s power under Article II of the Constitution “to fill up all Vacancies that may happen during the Recess of the Senate” allows appointments for (a) vacancies that came open while the Senate was in session and while (b) the Senate is in pro forma session (i.e., it is open but not transacting any legislative business).

In Noel Canning, President Obama appointed officers to the NLRB to positions that came open while the Senate was in session. He also appointed them while the Senate was in a pro forma session. Critics have rightly attacked President Obama for aggrandizing presidential power. The original understanding of the Clause appears to support the D.C. Circuit’s position, but by practice presidents had made recess appointments while the Senate was out of session for more than three days (or any time in between sessions), without Senate pushback.

There are two reasons to fault President Obama no matter whether one agrees or disagrees with an originalist approach to interpreting the Constitution. First, President Obama risked executive power by upsetting a settled arrangement that had given the president a great deal of flexibility, all in the cause of achieving the short-term, partisan goal of advancing his pro-union agenda. Presidents, I think, should make broader claims of presidential power when the stakes for the nation and the office are higher than whether Boeing should be allowed to open a plant in South Carolina.

Second, and much worse, is that President Obama sought the power to decide when the Senate is in session. In this case, President Obama claimed that the Senate’s pro forma session was not a real session under the Constitution, and therefore he could do as he liked. This is not for the president to decide. Under the separation of powers, each branch decides its own rules of decision — the Congress and president cannot tell the Supreme Court what majorities it must have to decide a case, for example, and the president cannot dictate Congress’s procedures for impeachment. Similarly, neither the president nor the Supreme Court can impose on Congress a set of internal rules. President Obama’s attempt to seize such a power represents a serious violation of the separation of powers, one that must not be recognized by the other branches.

Also Visit
AEIdeas Blog The American Magazine
About the Author

 

John
Yoo

What's new on AEI

Defeating ISIS: AEI experts weigh-in before the president’s address on Wednesday
image Degrading, defeating, and destroying the Islamic State
image Wealth Building Home Loan: Building wealth through homeownership and retirement savings
image The $3 iPhone
AEI on Facebook
Events Calendar
  • 15
    MON
  • 16
    TUE
  • 17
    WED
  • 18
    THU
  • 19
    FRI
Tuesday, September 16, 2014 | 5:00 p.m. – 6:00 p.m.
The Constitution as political theory

Please join us for the third-annual Walter Berns Constitution Day Lecture as James Ceasar, Harry F. Byrd Professor of Politics at the University of Virginia, explores some of the Constitution’s most significant contributions to political theory, focusing on themes that have been largely unexamined in current scholarship.

Wednesday, September 17, 2014 | 8:10 a.m. – Thursday, September 18, 2014 | 1:30 p.m.
Third international conference on housing risk: New risk measures and their applications

We invite you to join us for this year’s international conference on housing risk — cosponsored by the Collateral Risk Network and AEI International Center on Housing Risk — which will focus on new mortgage and collateral risk measures and their applications.

Thursday, September 18, 2014 | 2:15 p.m. – 3:00 p.m.
Speaker of the House John Boehner on resetting America’s economic foundation

Please join us as Speaker John Boehner (R-OH) delivers his five-point policy vision to reset America’s economy.

Event Registration is Closed
Friday, September 19, 2014 | 9:15 a.m. – 11:00 a.m.
Reforming Medicare: What does the public think?

Please join us as a panel of distinguished experts explore the implications of the report and the consumer role in shaping the future of Medicare.

Event Registration is Closed
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.