Obama’s Unconstitutional “Recess” Appointments Come Before the Supreme Court
Amy Payne /
Remember President Obama’s “recess” appointments—that really weren’t during a Senate recess? The Supreme Court is hearing arguments today in a case that highlights problematic appointments to the National Labor Relations Board (NLRB), which oversees labor unions in America.
Three federal appellate courts have struck down these recess appointments as unconstitutional.
John Malcolm, director of Heritage’s Edwin Meese III Center for Legal and Judicial Studies, explains what happened:
President Obama tried to pull a fast one on the American public. He had the temerity to try to tell the Senate how to interpret its own rules about when it was “in session” for the purposes of making a “recess appointment,” something no President has ever attempted.
Though the issue deals with Senate rules and procedures, Malcolm said it is something all Americans should watch—because it involves a breach of the Constitution.
This was a bald-faced attempt to bypass the Senate’s constitutional authority to provide “Advice and Consent” (or to withhold that consent) before the appointment of certain high-ranking, executive branch officials. The President is a lawyer, and only lawyers know the intricacies of the constitutional rules governing appointments. He clearly violated the Constitution, but did so in a way that the average person would not understand.
The Supreme Court has never considered the meaning or application of the Recess Appointments Clause. In a Legal Memorandum for Heritage, Michael Stern wrote that “This case could have significant ramifications for the balance of power between the President and Senate with regard to the confirmation process.”
>>> Watch a discussion of this issue with Senator Mike Lee (R-UT) and law professor John Yoo
Learn more: Legal Memorandum on the President’s power to make recess appointments