Supreme Court

Supreme Court Will Rule on Constitutionality of Obama's NLRB Recess Appointments


Setting the stage for a major constitutional showdown over the scope of presidential power, the U.S. Supreme Court agreed this morning to hear the case of National Labor Relations Board v. Noel Canning. At issue is whether President Barack Obama's three purported recess appointments to the NLRB in January 2012 violated the Constitution because they occurred when the Senate was not actually in recess.

Under the Appointments Clause of the U.S. Constitution, the president may make temporary appointments 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." In this instance, however, Senate Republicans were holding pro forma sessions—convening every three days—for the purpose of denying the president his lawful ability to invoke the recess appointment power.

But Obama ignored this impediment and still made the appointments. That unilateral action earned the president an unwelcome rebuke from the U.S Court of Appeals for the District of Columbia Circuit, which ruled the appointments unconstitutional and upbraided the White House for adopting a position that "would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction." Moreover, the D.C. Circuit held that the recess appointment power may never be used during an intra-session Senate break and that it may only be invoked when the vacancy at issue originally arose during a recess.

That decision is now before the U.S. Supreme Court. Oral argument is expected later this fall.

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  1. Oh – that’s easy! “No, they were not Constitutional, and therefore are vacated.”

    But given “Penaltax” and other evidence of mega-inconsistency and untrustworthiness, I have no expectation they’ll get this right.

    1. “Oh, it will cause a big upheaval if we overrule this law/action? Better not do it then.”

      That’s a good lesson to send to the other branches.

  2. …”upbraided the White House for adopting a position that “would demolish the checks and balances”…

    Business as usual.

  3. I have little doubt that the court will rule based on expediency for the government and not on constitutionality. I hope I am wrong, but history says it is unlikely that I am.

  4. My money is on the Supremes overturning the ruling on some sort of procedural grounds. I don’t see how they can overturn it on Constitutional grounds but I can’t imagine them not overturning it.

    I keep hearing the argument that the Senate was in pro forma session solely “for the purpose of denying the president his lawful ability to invoke the recess appointment power” as if the president was forced to act because the senate wouldn’t act. The Senate did in fact act – specifically to keep the president from acting. If Congress refuses to pass legislation solely for the purpose of denying the president his lawful ability to sign legislation into law, does this give the president the authority to enact legislation on his own?

    1. Yes. Yes it does.

      -Decree from President Shitweasel

  5. Why accept to review such a shellacking if not to overturn it? Roberts joins the 4 progressives in a 5-4 ruling for executive power.

    1. Not necessarily. This issue has huge implications for future presidential appointments. Without a Supreme Court ruling, it will continue to be a problem.

  6. Kneel before ZOD!

  7. Precedent has shown us the correct procedure is to assume any government action is constitutional.

    Otherwise, SOMALIA!

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