Supreme Court Set to Rule on Cases Challenging Federal Power

By:  Joe Wolverton, II, J.D.
Supreme Court Set to Rule on Cases Challenging Federal Power

The Supreme Court justices will be very busy during June, prior to breaking for summer vacation. Remarkably, there are 25 pending cases, several of which deal directly with issues of substantial constitutional concern, including recess appointments and the separation of powers doctrine.

First up is a case challenging President Obama’s abuse of executive appointment power.

One of the central questions facing the justices in the case of Noel Canning v. National Relations Labor Board (NLRB) is when is a recess not a recess.

President Obama appointed members to the NLRB without the consent of the Senate, claiming the Senate was in recess, though the Senate viewed itself as being in session. When the Senate actually is in recess, the Constitution allows the president to appoint officials without consent of the Senate.

The president’s going to have a long row to hoe to convince a majority of the justices that he didn’t violate the limits of that provision, however, when he chose to place his own will above the Senate’s claim that it was indeed in session.

In January 2013, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit held that the recess appointments violated Article II, Section 2 of the Constitution, the so-called Appointments Clause.

This clause states that the president shall "nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law."

The plain language of the clause in question authorizes the president to make appointments when the Senate is in recess. If such is the case, 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.

Article II also makes it clear that the Senate must already be in recess in order for an appointment made in its absence to be valid. Here’s where President Obama’s actions seem to part ways with the Constitution.

Not surprisingly, though, Attorney General Eric Holder defended the president’s questionable appointments. In a memo dated January 6, 2012, Department of Justice officials cited various scholarly and bureaucratic interpretations of the Recess Appointment Clause of Article II in order to buttress their opinion:

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