The Patriot Post® · Obama's Recess Appointments Under Scrutiny

Ever since the beginning of the country, the executive branch has been making questionable appointments to further political ends. The Judiciary Act of 1801 allowed John Adams to make his (in)famous “midnight appointments” of federal judges in the waning days of his administration. The second, and last, Federalist president sought to pack the federal judiciary to disadvantage the incoming administration of Democratic-Republican Thomas Jefferson. One appointment, that of William Marbury, wasn’t recognized by Jefferson’s Secretary of State, James Madison, leading to one of the most important decisions in American jurisprudence, Marbury v. Madison, in which Supreme Court Chief Justice John Marshall established the principle of judicial review.

Monday once again saw a significant Supreme Court case – Noel Canning v. NLRB – and it centers on the legality of Barack Obama’s “recess” appointments to the National Labor Relations Board. The Constitution gives the president the power to appoint federal judges and officers with the “advice and consent” of the Senate with one exception – that the president “shall have power to fill up all vacancies that may happen during the recess of the Senate.” Those appointments then last for the duration of the current Senate session.

But taking the position that it is both judge and jury, the administration argues it has the power to decide for itself when the Senate is in recess for purposes of making recess appointments, making it irrelevant whether the Senate considers itself to be in session or not. Obama’s expansive view of his own authority seems to include unlimited appointments power. George W. Bush never sought to make recess appointments during pro forma Senate sessions when the Senate technically gavels in and out to fulfill a constitutional requirement, but does not conduct any business. Obama’s actions go to the heart of separation of powers.

During oral arguments, leading originalist Justice Antonin Scalia went after U.S. Solicitor General Donald Verrilli, who took the position that the Constitution’s recess appointments clause is ambiguous enough to validate Obama’s temporary appointments. “It’s been assumed to be ambiguous by self-interested presidents,” Scalia retorted. Scalia argued that the text of the Constitution does not permit presidents to appoint individuals to government agencies during pro forma sessions. He suggested the power ought to be restricted to official recesses. Indeed, based on the tone of arguments Monday, the vote may even be 9-0 against Obama.