Right v. Left Debate: Should U.S. Supreme Court Strike Down the Executive Branch’s Poaching of Recess Appointment Authority from the Senate?

Yesterday the U.S. Supreme Court heard oral arguments in an important case for the separation of powers, National Labor Relations Board v. Canning.

This is a case testing the constitutionality of the Obama Administration’s effort to steal some power from the legislative branch.

In short, the Obama Administration is claiming the president has the authority to decide when the Senate is in recess, and to make recess appointments (temporary appointments without Senate approval that ordinarily would require Senate approval) when he determines the Senate is in recess, even if the Senate disagrees.

The effect of allowing the Administration’s point of view to stand would be:

  • transferring some power from the legislative branch to the executive branch;
  • changing the president’s recess appointment power from one designed to give the executive temporary powers when the Senate is out of town to one that gives the president the authority to override the Senate when he disagrees with it;
  • to undermine the Constitution, since the meaning of the Constitution’s text is clear, and favors the Senate.

Miguel Estrada, arguing against the president’s position before the court, told the Justices yesterday, “there is no power in the Constitution to use the Recess Appointments Clause to overcome the opposition of the Senate to the president’s nominees.”

The Court is tackling three questions:

  • who decides whether the Senate is in recess, the legislative branch or the executive?;
  • does a vacancy have to occur during a Senate recess to be filled via a recess appointment?;
  • does a recess appointment have to be made during a recess between Senate sessions?

On the Main Street Radio Network’s Alan Nathan Show yesterday, Democratic strategist Bob Weiner and I reviewed the issues at stake in this case and why, in my view at least, and apparently Alan Nathan’s as well, the President’s power grab should be soundly rejected by the Court. I also predicted that it will be rejected.

If so inclined, enjoy.



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