When a Recess Is Not a Recess: Obama vs. Article II

By:  Joe Wolverton, II, J.D.
When a Recess Is Not a Recess: Obama vs. Article II

On Monday, the Supreme Court heard oral arguments in a case challenging the scope of the president's recess appointment power.

On Monday the Supreme Court heard oral arguments in a case highlighting another of President Obama’s attempts to exalt himself above the Constitution and make his word the only law.

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.

Marshall Babson is uniquely qualified to analyze the Noel Canning case. He is a noted labor relations attorney, a veteran observer of the Supreme Court, and a former member of the National Labor Relations Board. Babson was in the courtroom Monday as the nine justices heard arguments for and against the claim that President Obama exceeded the appointment power granted in the Constitution.

In an interview with The New American, Babson described the justices as extraordinarily active in questioning the parties in the case. “They [the justices] are very engaged in this. This separation of powers issue is fundamental and compelling and if any issue was going to garner their attention, this certainly would be it,” Babson said.

The broader constitutional issue as Babson sees it is, when it comes to the president’s power to appoint executive branch officials during a Senate recess, may the president unilaterally decide when the Senate is in recess or does that power reside exclusively within the Senate itself?

Noel Canning’s road to the Supreme Court began when President Obama chose to disregard the Senate’s sense of its status (whether in recess or not) and, relying on the appointments clause, to fill vacancies on the National Labor Relations Board without Senate advice and consent.

In January 2012, President Obama used recess appointments to fill three seats on the National Labor Relations Board, arguing that the appointments were made in complete compliance with his Article II powers.

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