Supreme Court Unanimously Finds President Obama Violated Constitution In Use Of Recess Appointments

Supreme CourtPresident_Barack_ObamaThe Supreme Court has ruled in Noel Canning v. NLRB, No. 12-1115, and found that President Obama had indeed violated the constitution in his recess appointment. The decision was unanimous. I will be discussing this and the abortion case ruling at 1pm with Wolf Blitzer on CNN.

The unanimous decision was academically gratifying because I was the lead witness in the Judiciary Committee hearing on the appointments. Roughly two years ago, I testified in Congress that the recess appointments of President Barack Obama were unconstitutional. Those four appointments by President Obama included Richard Cordray, who had been denied confirmation to a consumer protection board in a Republican filibuster. While I liked Cordray, I testified that the appointments were in my opinion clearly unconstitutional. As someone who previously testified and written that the appointments were flagrantly unconstitutional, I received a great deal of push back. I was highly critical of the work of the Office of Legal Counsel in my testimony and my writings, which advised Obama that he had this authority. See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review (2013).It was a disappointing piece of work by an office that used to be independent and highly respected for its analysis. For prior columns, click here and here and here and here.

The decision is an important victory for the separation of powers. It will also further magnify the growing controversy over President Obama’s unilateral actions in various areas — part of his pledge to circumvention Congress to get things done. I recently testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. Obama has repeatedly suspended provisions of the health care law and made unilateral changes that were previously rejected by Congress. He has also moved hundreds of millions from one part of the Act to other parts without congressional approval. Now, his administration is reportedly changing key provisions of the ACA to potentially make billions of dollars available to the insurance industry in a move that was never debated, let alone approved, by the legislative branch. I ran another column this month listing such incidents of executive over-reach that ideally would have included this potentially huge commitment under Obama’s claimed discretionary authority.

The Court finally defended the lines of separation in one of these disputes. The Court specifically rules out the type of “going it alone” approach of the President in the use of recess appointments and other Executive powers:

Regardless, the Recess Appointments Clause is not designed to overcome serious institutional friction. It simply provides a subsidiary method for appointing officials when the Senate is away during a recess. Here, as in other contexts, friction between the branches is an inevitable consequence of our constitutional structure. See Myers, 272 U. S., at 293 (Brandeis, J., dissenting). That structure foresees resolution not only through judicial interpretation and compromise among the branches but also by the ballot box.

Here is the opinion: Canning

188 thoughts on “Supreme Court Unanimously Finds President Obama Violated Constitution In Use Of Recess Appointments

  1. Richard,

    Thank you for your telling me of your appreciation for being given a way to get a nap. Naps can be helpful.

    I write for, and only for, such people, if any, who may find some use for what i write.

  2. How about one (compound) sentence, whatever happens, as it happens, is inescapably both perfectly necessary and perfectly sufficient, even if so merely because nothing else ever happens.

  3. Now see, that was concise and to the point.

    An “economy of words” and circumvention of the “fog factor.”

  4. Thanks, what I wrote that, I guess, you found acceptable was concise, to the point, economical of words, circumvented the “fog factor” and was perfectly meaningless for want of any trace of meaningful context.

    Also, it was specifically written to be flawlessly pointless.

  5. Jimmycrackcorn and all others who think they pass out of a need for the planet when they kick the bucket…. BALONEY! In 40 years you will be back on it or floating in space around an asteroid belt between Venus and Mars. You bought the One Lifetime MuslimJudeoChristian thing to control you. Take more responsibility than that!

  6. Constitutional Law “professor ” who “studied” constitution at Harvard , who “taught” constitution , and who had said will “obey” constitution , has really done all of that , while living in his bubble , and his supporters will defend him while living in their own bubbles .

  7. Annie, Government was never intended to be large, it was always intended to be small. That’s the true stature of a Republic-Democracy. That’s real freedom. When a government takes from one and gives to another that’s socialism. We were never intended to be a complete socialistic country.

  8. To expand on mespo727272’s comment at 2:22 pm June 26, 2014:

    Jonathan Turley, perhaps now that you’ve taken down President Obama a notch with your criticism of his extra-constitutional behavior in making four recess appointments when Congress was nominally not in recess — why don’t you comment on Congress’ cute trick?

    Do you really think it’s constitutionally correct and within their power for Congress to abrogate the President’s executive power by the sham non-recess when essentially no one’s in Congress and everyone’s on vacation or between Sessions? Do you really think calling Congress into “Session” for mere minutes every 3 days during the Recess is the intent of the law?

    “12/17/11 09:49 PM EST The Senate adjourned for the year shortly after 3:30 p.m. Saturday, but GOP leaders insisted on holding ten cursory pro-forma sessions over the next month to stop President Obama from making recess appointments.”

    Read more:

    • karen503 – evidently the Supreme Court thinks Congress is in session, even if the President doesn’t.

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