Daily Meme: Obama v. Congress

  • Today, the Supreme Court will hear oral arguments for National Labor Relations Board v. Canning. The case, which kicks off the high court's big year of big cases has the potential to change the whole balance of power between the executive and legislative branches on recess appointments. 
  • The most recent iteration of President v. Congress on appointments started when Obama appointed Richard Cordray to lead the NLRB while the Senate was not in session. Republicans had been ... a little reticent, let's say, to give Cordray the thumbs up, so the president went ahead and did it himself, while adding two more people to the board too so it could finally have a quorum.
  • The AP sums it all up as "a politically charged dispute that also is the first in the nation's history to explore the meaning of a provision of the Constitution known as the recess appointments clause. Under the provision, the president may make temporary appointments to positions that otherwise require confirmation by the Senate, but only when the Senate is in recess."
  • "Legal scholars are salivating over the outcome of what they say is the most important separation of powers case in at least two decades. That’s because it not only reflects the most basic argument about constitutional law (whether strict constructionist originalism is most important, or applying precedent and common sense to real world situations) but also could have the effect of theoretically invalidating thousands of decisions by dozens of recess appointees dating back more than 200 years."
  • Yup, this is an old, old game. Teddy Roosevelt did it. Reagan did it. A bunch of presidents did it.
  • "A Congressional Research Service report found 329 recess appointments since President Ronald Reagan in 1981 would not meet the appeals court's criteria and could therefore be ruled void if the appeals court's ruling is upheld." Obama's legal team notes that "since the 1860s, at least 14 presidents have, collectively, made at least 600 civilian appointments (and thousands of military ones) during intra-session recesses."
  • "A Washington state bottling company called Noel Canning was on the losing end of a dispute with its local Teamsters union over pay that was regulated by the NLRB. Because the board that sided with the union contained three members who were approved by recess appointment, the company—along with many of the country’s top Republicans—are challenging the ruling. Three federal appeals courts sided with Noel Canning that the recess appointments were improper."
  • "In its appeal, the Obama administration warned that the D.C. Circuit opinion 'would eviscerate' the president's appointment power and 'dramatically upset' the equilibrium between political branches."
  • Nina Totenberg simplifies the issues at hand: "On one side of the argument is the original intent of the founders. On the other is the pragmatic question of how to run a large modern government, and how that has been accomplished for the past century, and more."
  • Jeffrey Toobin notes that the case "is a useful reminder of where power resides in Washington. Presidents come and go, but the judges are there forever. And they know it."
  • Many of the court's most powerful players are well known originalists. But, they also aren't the biggest fans of the Senate. On the other hand, they probably don't like the NLRB much either. And, as Patrick Caldwell points out, recess appointments helped Justice Scalia's son get a job!
  • Norm Ornstein notes"If you look at Scalia and Thomas and Roberts—these are all people with very significant experience in the executive branch, who in the past have been very protective of executive power and skeptical of congressional power ... But that was back when Republicans dominated the presidency and Democrats dominated the Congress. Now it'll be interesting to see if these staunch originalists stand by their views. And I don't know the answer to that."
  • Regardless of your political views on the matter, the archaeological digging preferred by some of our leading legal thinkers doesn't seem the best way to solve today's most vexing political issues. Eric Posner writes, "Is the right way to resolve a 21st-century controversy to place the minutiae of the 1790s under a magnifying glass and ignore everything that came later? Whether you come down for or against Obama, surely the answer is no."

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