Disarming the White House
By NORMAN J. ORNSTEIN, NYT, JAN. 21, 2014
WASHINGTON — AMID the coverage of the Christie controversy and the latest budget deal, it was easy to miss the news about last week’s oral arguments before the Supreme Court in the case of National Labor Relations Board v. Noel Canning. And yet the Canning case represents the biggest threat to presidential power in decades, and the stakes in the decision are extremely high.
The case grew from a challenge by the Noel Canning Corporation to President Obama’s recess appointment of several nominees to the N.L.R.B., along with the head of the Consumer Financial Protection Bureau. Recess appointments are not unusual, but in this case, the Senate was away but still convening pro forma sessions — just five minutes or so at a time — because the House had not given permission to adjourn.
The challenge began narrowly, centered on the question of whether a president or the Senate gets to decide when the legislative body is in recess. But it was broadened dramatically last year by a panel of the Court of Appeals for the District of Columbia Circuit, which ruled that virtually all recess appointments violated the direct language of the Constitution: Only those vacancies occurring during the recess between the two sessions of Congress, and only those filled during that recess, would be allowed. Because such recesses are very brief, the odds of a significant vacancy opening up during them are near zero.
The tenor of the oral argument suggested widespread skepticism by the justices about recess appointments in general, despite their frequent use by presidents for 200 years. The court might rule narrowly, simply outlawing the kinds of recess appointments made by Mr. Obama, leaving intact the accepted practices, and usual tugs of war, that have characterized nomination battles for many decades. But there is a strong chance that the Supreme Court will agree with the D.C. Circuit opinion, in essence erasing the recess appointment authority and capability of the president.
(More here.)
WASHINGTON — AMID the coverage of the Christie controversy and the latest budget deal, it was easy to miss the news about last week’s oral arguments before the Supreme Court in the case of National Labor Relations Board v. Noel Canning. And yet the Canning case represents the biggest threat to presidential power in decades, and the stakes in the decision are extremely high.
The case grew from a challenge by the Noel Canning Corporation to President Obama’s recess appointment of several nominees to the N.L.R.B., along with the head of the Consumer Financial Protection Bureau. Recess appointments are not unusual, but in this case, the Senate was away but still convening pro forma sessions — just five minutes or so at a time — because the House had not given permission to adjourn.
The challenge began narrowly, centered on the question of whether a president or the Senate gets to decide when the legislative body is in recess. But it was broadened dramatically last year by a panel of the Court of Appeals for the District of Columbia Circuit, which ruled that virtually all recess appointments violated the direct language of the Constitution: Only those vacancies occurring during the recess between the two sessions of Congress, and only those filled during that recess, would be allowed. Because such recesses are very brief, the odds of a significant vacancy opening up during them are near zero.
The tenor of the oral argument suggested widespread skepticism by the justices about recess appointments in general, despite their frequent use by presidents for 200 years. The court might rule narrowly, simply outlawing the kinds of recess appointments made by Mr. Obama, leaving intact the accepted practices, and usual tugs of war, that have characterized nomination battles for many decades. But there is a strong chance that the Supreme Court will agree with the D.C. Circuit opinion, in essence erasing the recess appointment authority and capability of the president.
(More here.)
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