Barack Obama

Meet the Liberals Backing Obama's Executive Power Play in Labor Board Case

The Supreme Court weighs the constitutionality of Obama's recess appointments.

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On Monday January 13, the U.S. Supreme Court will hear oral argument in a major case testing the scope of presidential power.

At issue in National Labor Relations Board v. Noel Canning is President Barack Obama's controversial use of the recess appointments power in January 2012 to bypass the Senate confirmation process and add three new members to the National Labor Relations Board (NLRB). The controversy arose because Obama did not make those appointments when the Senate was technically in recess, but did so instead when the Senate was in session—Senate Republicans were then gaveling the body to order every few days for the precise purpose of denying the president his lawful ability to make such appointments. Among the issues before the Supreme Court is whether Obama's actions exceed his constitutional authority 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."

Perhaps unsurprisingly, the Obama administration has received support in the case from conservative legal experts who once served under President George W. Bush. Like Obama, Bush also made aggressive use of the recess appointments power in order to bypass what he saw as an obstructionist Senate.

What is surprising, however, is that Obama has also received strong support from a leading liberal organization, the Constitutional Accountability Center, a Washington think tank and law firm "dedicated to fulfilling the progressive promise of our Constitution's text and history."

According to a friend of the court brief submitted by the Constitutional Accountability Center on behalf of the federal government in Noel Canning, "crabbed and erroneous interpretations of the Recess Appointments Clause would undermine the scope of a presidential power that is fundamental to the proper operation of the federal government: the President's ability to make temporary appointments to Executive and Judicial Branch offices when the Senate is unavailable to provide its advice and consent."

That view is surprising because it stands in such marked contrast to previous progressive interpretations of the Recess Appointments Clause, most notably that of Democratic Sen. Ted Kennedy of Massachusetts. In 2003, Kennedy filed his own friend of the court brief when the federal courts heard a similar case dealing with President Bush's purported recess appointment of William H. Pryor to the U.S. Court of Appeals for the 11th Circuit, an appointment which Bush made while the Senate was on an intra-session break, not while it was in recess.

Among Kennedy's lawyers on that 2003 brief was Harvard Law School's Laurence Tribe, a leading liberal authority and one of Obama's old professors. "The President may not make recess appointments during intra-session Senate breaks," the Kennedy brief declared. If adopted by the Supreme Court, that position would invalidate the recess appointments made by both Bush and Obama.

In essence, next week's arguments in NLRB v. Noel Canning will feature two competing liberal takes on executive power. One, originally filed in opposition to George W. Bush, views the Recess Appointments Clause as a narrow grant of presidential authority. The other view, filed in support of Barack Obama, sees the clause as a broad affirmation of the president's power to shape national affairs.

We'll find out by the end of the term which one of these clashing views is able to command a majority on the current Supreme Court.

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  1. You mean the left is outraged when the other TEAM does something, but totally cool when their TEAM does the exact same thing?

    I’m shocked!

  2. Black Santa is on TV right now advocating more free shit.

  3. “What is surprising, however, is that Obama has also received strong support from a leading liberal organization,”

    I dont think that word means what you think it means.

  4. What is surprising, however, is that Obama has also received strong support from a leading liberal organization, the Constitutional Accountability Center, a Washington think tank and law firm “dedicated to fulfilling the progressive promise of our Constitution’s text and history.”

    “It ain’t Fascism when WE do it!”

  5. The QUESTION AUTHORITY wing of progressivism is just resting.

    They’ll be out in force when President Christie tries to continue all those bad old programs from the Boooosh years.

    1. If we do indeed get a President Christie, we are far more fucked than we realize.

      1. I fail to see how he’s anything other than an improvement on the status quo.

        1. Because he’s a Republican who is in favor of all the illegal shit Obama has been doing, like the NSA violating our rights. So, once both team Blue and team Red have both had a tyrant who practices these abuses, said abuses become SOP, with no major team having at least a partisan reason to oppose them. (I know, I know: BOOSH! But team Red can pretend Bush was an outlier who acted the way he did because of a sense of imminent danger, i.e. 9/11. Obama has, and Christie would, take temporary insanity and normalize it.)

      2. more fucked if the queen rises to her throne, i’ll beg to differ

  6. Black Santa is on TV right now advocating more free shit.

    “We’re all mentally disabled, now.”

  7. According to a friend of the court brief submitted by the Constitutional Accountability Center on behalf of the federal government in Noel Canning, “crabbed and erroneous interpretations of the Recess Appointments Clause would undermine the scope of a presidential power that is fundamental to the proper operation of the federal government[…]”

    “I say, Wrongo, we can’t have justices telling we can’t have a wise dictator, especially one so dreamy!”

    1. I love it. “Crabbed and erroneous interpretations”, indeed.

      Here is the recess appointments clause:

      The President shall have Power 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.

      Since we aren’t arguing about when these appointments “happen” (plain English would seem to indicate it applies only to vacancies that are created during a recess),

      We must be arguing about what counts as a Recess of the Senate. That is not defined in the Constitution, so the question comes down to whether the Senate or the President has the authority to declare a recess.

      If its up to the President, then he can send the Senate home whenever he wants, which of course is banana republic stuff. Aside from that, of course, the default for any body is that it declares itself in (or out) of session.

      So, saying the Senate has the authority to declare when its sessions open and close is a “crabbed and erroneous interpretation”?

      I give SCOTUS even odds of giving the Prez banana republic powers to declare a given Congressional session at an end.

      1. by granting Commissions which shall expire at the End of their next Session.

        It’s pretty damn clear that that means any vacancies he fills while the Senate is out of session expire when the next Senate Session ends too.

        To me (and correct me if I’m wrong) that means the vacancies he fills without senate approval are only temporary and he must nominate someone to get approved by the senate for when that temporary person has to leave. Somehow, I doubt this has happened.

        1. From my read of the ‘expert on American government’s’ report to congress on the topic

          http://www.senate.gov/CRSReports/ crs-publish.cfm?pid=’0DP+P\\\\\\\\W; P

          the terms do expire at the end of that session of congress if they are not confirmed?.and that has been the practice. The problem is that could last as long as two years and a lot of damage can be done in that time. It is interesting to note that if the individual is voted down by the Senate during this time, they can still remain in office until the end of the session though they usually are no longer paid for said service.

          Of concern to me is the blatant misuse of this provision by many presidents from both parties (Reagan over 240 times!?!?) with the resulting appointment of unpalatable candidates to executive positions. Obo’s latest furtherance of this indiscretion by taking it upon himself to do it during an intrasession break reveals his unmatched arrogance that I hope even the courts might find disdainful and worthy of intervention. But I’m not holding my breath.

  8. Can one of the lawyers on this blog explain to me how, on one hand, one must have standing to sue the government (e.g. Dick Heller had applied for and been denied a gun permit, and therefore had standing to sue D.C.), but once a case is filed, everybody and his brother gets to weigh in as a friend of the court filing amicus curiae briefs ?

    1. Sure.

      You have to have standing to be a party, which means you are subject to the ruling of the court, can file motions, are subject to discovery, etc.

      Amicus briefs are purely informational filings by interested and interesting third parties.

  9. Amicus briefs are purely informational filings by interested and interesting third parties.

    I think we have a FAIL on that point. The vast majority of amici are uninteresting as fuck.

  10. “What is surprising, however, is that Obama has also received strong support from a leading liberal organization, the Constitutional Accountability Center, a Washington think tank and law firm “dedicated to fulfilling the progressive promise of our Constitution’s text and history.”

    There are important distinctions between liberals and progressives.

    Progressives are differentiated by their enthusiasm for using the government to force individuals to make sacrifices for “the greater good”.

    When we use “liberal” and “progressive” interchangeably, it destroys the possibility of there being people on the left who believe in civil rights.

    To me, that’s the defining characteristic of an honest liberal–they believe in individual rights. During the civil rights struggle, for instance, they believed that black people had rights and the government should protect them–no matter what the majority wanted.

    We don’t want people on the left to think that there is no distinction between liberals and progressives.

    Someday, maybe we can exploit that division. Progressives are our opposites, and I’d hate to think the only chance libertarians have of thwarting them is when the Republican establishment has the White House.

    So, let’s at least give the left some theoretical room for internal conflict; otherwise, voters who swing left may come to imagine that progressives are the only choice possible.

    1. “There are important distinctions between liberals and progressives.”

      I agree, but sadly I just see a lot of difference on the Left anymore. You do have some pretty large differentiation on the right with respect to statists vs non-statists. But how many prominent Left wing non-statists are there anymore. You used to have the Whole Earth catalog kind of leave me alone type Liberal. Now you have the Tony’s.

  11. We’ll find out by the end of the term which one of these clashing views is able to command a majority on the current Supreme Court.

    And some — most — people will think that majority vote defines what is constitutional.

  12. Why you all trying to tie his hands? You know hes gonna do the right thing but he’s gotta have the power…How else can he save us all from the threat of limited government.

    1. No shit! Do you think the seas are gonna stop themselves from rising? Or that the planet is going to heal itself? If Cnut has given his command, who are we to get the hem of his robe wet?

  13. It is not surprising that we will find 1/2 of USA voters declaring themselves ‘independent’ in the next elections and for years to come. The parties we have are not for and by the people. The people must destroy them, or at least bring .some sense to their being or we will depart. Thank you Reason.com !!!

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