Heartland Institute Experts Comment on NLRB Recess Appointment Case Before Supreme Court

January 13, 2014

The Supreme Court today heard arguments in Noel Canning v. NLRB, a case challenging President Barack Obama’s recess appointments to the National Labor Relations Board in 2012. The Obama administration argued the Senate was in recess, but the Senate had not officially adjourned its session.

The following statements from legal experts at The Heartland Institute – a free-market think tank – may be used for attribution. For more comments, refer to the contact information below. To book a Heartland guest on your program, please contact Director of Communications Jim Lakely at jlakely@heartland.org and 312/377-4000 or (cell) 312/731-9364.

“In Noel Canning v. NLRB, the U.S. Supreme Court is expected to decide up to three issues concerning the president’s Constitutional power to make certain temporary appointments while the Senate is in recess: (1) whether the recess may occur within a session of the Senate, rather than between enumerated sessions of the Senate; (2) whether the power applies to all vacancies that happen to exist during a recess rather than those that first arose during the recess; and (3) whether the president’s power applies when the Senate convenes every three days in only pro forma sessions.

“Although seemingly arcane, the answers to these three questions will subtly affect the balance of power between the legislative and executive branches while continuing to affirm the supremacy of the judicial branch as the ultimate arbiter of Constitutional questions. The only safe prediction concerning the outcome is that the executive branch must win all three arguments in order to prevail, while the legislative branch need win only one.”

David L. Applegate
Policy Advisor, Legal Affairs
The Heartland Institute

“The recess appointments case involves more than just the president’s attempt to give senior offices to people without the burden of Senate confirmation. Rather, it is about whether the president is the boss of Congress itself.

“One of the fundamental rules of the Constitution is that Congress and the president control the internal operations of their own departments. The president now maintains that he decides when Congress is ‘really’ on recess and when it is not. In other words, he determines when Congress is in session. This is a major power grab which threatens to weaken the separation of powers.”

Eugene Kontorovich
Professor of Law, Northwestern University
Policy Advisor, Legal Affairs
The Heartland Institute

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