The Christian Science Monity reports:
The US Supreme Court on Monday takes up a potential landmark case examining whether President Obama overstepped his authority when he unilaterally declared that the Senate was in recess and appointed three new members to the National Labor Relations Board.
The Constitution assigns to the president the power to appoint judges and officers of the United States, but it requires him to act with the “advice and consent” of the Senate.
There is an exception. The Constitution also provides that the president “shall have power to fill up all vacancies that may happen during the recess of the Senate.” Such “recess appointments” can take place without obtaining the advice and consent of the Senate.
It is this recess appointment power that lies at the center of the historic showdown on Monday at the high court.
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On one side of the issue, the Obama administration argues it has the power to decide for itself when the Senate is in recess for purposes of making recess appointments.
On the other side, administration critics argue that President Obama’s expansive view of his own authority would “yield a virtually unlimited unilateral appointments power.”
The case arises at a time of extreme partisan differences in Congress that have made it increasingly difficult for President Obama to fill vacant posts in his administration. Obstructionist tactics by Republicans are not new. The same tactics were used by Democrats – including then-Senator Obama – to block or delay appointments by President Bush.
But President Bush never sought to make recess appointments during pro forma Senate sessions. That action by President Obama marks a new level of executive defiance of the Senate.
To some extent the urgency of the case has dissipated following the recent decision by Senate Democrats to invoke the so-called nuclear option – changing the Senate rules to permit approval of presidential appointments by majority vote rather than 60. The action undercut the ability of the Republican minority to block Obama appointments.
But it does nothing to resolve the more fundamental questions involving the balance of power among the executive, legislative, and judicial branches of government.
The high court case will require the justices not just to examine the contemporary practice of recess appointments, but to also weigh why the procedure was written into the Constitution and how the founding generation wielded that authority.
“None of the first four presidents of the United States – founders and framers all – adopted the Executive’s interpretation, even though it would have expanded their power,” wrote Noel Francisco, a Washington appellate lawyer, in his brief challenging President Obama’s recess appointments.
“That is far more persuasive evidence than decades-later, self-serving executive opinions,” he said. . . .
Today the Federalist Society's Labor & Employment Law Practice Group will be hosting a Courthouse Steps Teleforum on the case. Speaking will be of John Elwood Vinson & Elkins. FedSoc members can join the call here.