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

Four years of Dodd-Frank damage
image Dodd-Frank, financial institutions, and public opinion
image Time for an Anwar Sadat moment in the Middle East
image Freedom of the skies at risk
AEI on Facebook
Events Calendar
  • 21
    MON
  • 22
    TUE
  • 23
    WED
  • 24
    THU
  • 25
    FRI
Monday, July 21, 2014 | 9:15 a.m. – 11:30 a.m.
Closing the gaps in health outcomes: Alternative paths forward

Please join us for a broader exploration of targeted interventions that provide real promise for reducing health disparities, limiting or delaying the onset of chronic health conditions, and improving the performance of the US health care system.

Event Registration is Closed
Monday, July 21, 2014 | 4:00 p.m. – 5:30 p.m.
Comprehending comprehensive universities

Join us for a panel discussion that seeks to comprehend the comprehensives and to determine the role these schools play in the nation’s college completion agenda.

Event Registration is Closed
Tuesday, July 22, 2014 | 8:50 a.m. – 12:00 p.m.
Who governs the Internet? A conversation on securing the multistakeholder process

Please join AEI’s Center for Internet, Communications, and Technology Policy for a conference to address key steps we can take, as members of the global community, to maintain a free Internet.

Event Registration is Closed
Thursday, July 24, 2014 | 9:00 a.m. – 10:00 a.m.
Expanding opportunity in America: A conversation with House Budget Committee Chairman Paul Ryan

Please join us as House Budget Committee Chairman Paul Ryan (R-WI) unveils a new set of policy reforms aimed at reducing poverty and increasing upward mobility throughout America.

Thursday, July 24, 2014 | 6:00 p.m. – 7:15 p.m.
Is it time to end the Export-Import Bank?

We welcome you to join us at AEI as POLITICO’s Ben White moderates a lively debate between Tim Carney, one of the bank’s fiercest critics, and Tony Fratto, one of the agency’s staunchest defenders.

No events scheduled this day.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.