President Obama's Abuse of Executive Power

By:  Joe Wolverton, II, J.D.
10/15/2012
       
President Obama's Abuse of Executive Power

President Obama's use of recess appointments to put three bureaucrats on the National Labor Relations Board, even though the Senate says it was not in recess, is causing a legal challenge to his abuse of executive power.

In an opinion article published October 10 in the Washington Post, political commentator George Will describes one of President Barack Obama’s latest “abuses of executive power.” Writes Will:

On Jan. 4, [President Obama] used recess appointments to fill three seats on the National Labor Relations Board (NLRB), even though the Senate said it was not in recess. Obama’s cheeky Humpty Dumpty rejoinder was: I decide what “recess” means.

Now a court must decide whether the Constitution means what it says.

In 2011, the Noel Canning company, which bottles soft drinks in Yakima, Wash., was negotiating a labor contract with Teamsters Local 760. The union says it and the company reached a verbal agreement. The company disagrees. An administrative law judge sided with the union. On Feb. 8, after Obama’s disputed appointments, the NLRB upheld that decision and asked a federal court to enforce it. Noel Canning is asking the court to declare that the NLRB’s intervention in the dispute was unlawful because the board lacked a quorum until Obama made the recess appointments, which were invalid because the Senate was not in recess.

In defense of his controversial and legally questionable appointments, President Obama insists that they were made in complete compliance with the Constitution’s grant of such power to the president in Article II.

Is the president’s interpretation of Article II correct? To answer that question, one must first look to the text being cited as a justification for the appointments.

Article II, Section 2 of the U.S. Constitution states:

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.

The plain language of that clause authorizes recess appointments. If the Senate is in recess, then the president is within the sphere of his constitutionally enumerated powers to fill a vacancy that will be valid until the end of the next congressional session.

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