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Justice Breyer's Dowsing Rod Finds a Limit to the Recess Appointments Clause

June 27, 2014 in Economics

By Trevor Burrus

Trevor Burrus

As many people predicted, the Supreme Court unanimously struck down President Obama’s recess appointments to the National Labor Relations Board (NLRB). By declaring that he has the power to determine when the Senate is in session, President Obama demonstrated a degree of executive overreach that could not garner a single vote of support from the Justices.

This is a welcome victory for good governance and a partial victory for the Constitution. While Justice Stephen Breyer was correct to hold that the president cannot determine when and if the Senate is in session, he incorrectly ignored the original public meaning of the Constitution, as well as a common-sense reading of the text, in order to endorse an ad hoc and baseless theory of recess appointments.

This is a welcome victory for good governance and a partial victory for the Constitution.”

In one way this is just another scathing rebuke of the administration by the Court. From property rights (e.g.Sackett v. EPA) to religious freedoms (e.g.Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC), the Obama administration has a surprisingly bad record before the Court. Although President Obama’s tenure in office has been just the latest iteration in the time-honored American tradition of executive overreach, his attempts to push three members onto the NLRB were far more than a slight stretching of existing executive practices. Had the Court upheld the appointments, the result would have been a categorical change in relations between the Senate and the president in the matter of appointments.

It’s not surprising that the administration failed to convince a single Justice. The justifications for the appointments offered first by the OLC and then later by the Solicitor General were breathtaking in the level of discretion they gave the president. Even looking at the array of amicus briefs on each side, we see that only three amici supported of the government — the Constitutional Accountability Center, the Brennan Center, and Professor Victor Williams of Catholic University — as compared to twenty-five in support of respondent Noel Canning. In short, it was clear to most people, and eventually to nine Justices, that the administration’s case was quite weak.

This was obvious from the moment the OLC memo was released, which purported to justify the president’s recess appointments. Not only does the memo laughably say that the Senate’s best option to block presidential recess appointments is to be “continuously in session,” but the …read more

Source: OP-EDS

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