The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. -- U.S. Constitution, Article II, Section 2 In a unanimous 9-0 judgment, the Supreme Court repudiated President Obamas attempt to circumvent the safeguards contained in the Constitution by installing two members onto the National Labor Relations Board (NLRB) without obtaining the required Senate confirmation. The Recess Appointments Clause is clear that the President can unilaterally fill a vacancy when (1) the vacancy is created during the recess of the Senate and (2) the appointment is made during that recess. For decades, Presidents have routinely abused the Recess Appointments Clause by appointing individuals to fill vacancies during a Senate recess even when the initial vacancy did not happen during the Recess of the Senate. Obama went even further -- he purported to use the Recess Appointment clause to justify filling vacancies while the Senate was not even in recess. If Obama had his way, the constitutionally-mandated Senate confirmation process would be a dead letter. All nine justices found that Obama violated the Constitution, but the Court split 5-4 on the underlying rationale. Five justices construed the recess appointment power in a way that vindicated past Presidents use of the power while enforcing the requirement that the Senate actually be in recess for the clause to apply. Four justices simply applied the Constitution as written, which rendered Obamas actions unconstitutional but also called into question the practices of past Presidents. When there is a conflict between past practices and the text of the Constitution, it is the latter, these four justices reasoned, that must prevail. This dispute over constitutional process is very important regarding policy substance. By going around the Constitution, Obama placed individuals on the NLRB who are hostile to non-union workers and small businesses, thereby moving policy in a direction it might not have gone had Obama followed the Constitution. The Constitutions structure is not simply a curiosity meant to provide students with something to study during civics class. It is the primary security for our liberty and the main mechanism through which we hold government accountable.
Posted on: Mon, 30 Jun 2014 13:56:01 +0000
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