Congress, Constitutional Law, Courts, Society

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. No, making false claims is not acceptable behavior. I supported everything I said, you did not. The proof of that lies in the tread above, for all to read and make their own decision about it.

  3. Jill A fair number of them are neo-confederates like the guy that lost to Cochran in Mississippi. You can ally yourself with these groups to oust Obama but it is not all that moral to me.

  4. Darren, It’s 7:13 my time and I still don’t see the actual post of SMM.

  6. Jill, acceptable behavior? Excuse me? I’m not allowed to make the observation that you sound as partisan as you said very clearly I was? What’s good for the goose is good goth goose, but it must be based on more assumption on BOTH of our parts. No on like being mischaracterized and we all get to respond to such mischaracterizations. Now I’m off, have fun.

  7. I can see that SMM has made a post but cannot see her post. Darren, if you see this message will you report a problem to WP? This has been true of the entire thread. It will show a comment has been made, but not the actual comment. The comment finally shows up about 5 or less mins. later.

    Thanks!

  9. Jill

    I know people in the tea party movement and they aren’t all racist and they are quite sincere.” Will look for the Erickson quote later, but it may take some time.

  10. Annie, I did read your posts carefully. You have been attacking me with false claims. That is not acceptable behavior. I don’t wish you ill. At the same time, if you are going to make a false claim, I will correct that claim.

  11. We need to read each other’s comments carefully when hey are being posted so fast and furiously. I’m glad we could end up on a semi agreement on wrongdoing by both Presidents, Jill. I have a date with my 6 week old grandson in a few minutes, see you later perhaps.

  12. Jill, I said Paul would be happy to explain Bush’s righteousness in regard to torture. I know you don’t agree it was righteous.

  13. Annie, I just said that Bush and Cheney committed war crimes. How is that a discussion of Bush’s righteousness? You are simply making claims without any substantiation.

    Obama has also committed war crimes. The SC has, in a small way, begun to say no to the executive. This is a good thing for our nation.

  14. Wrong Bob, PRECEDENT is of vast importance, as a lawyer you should know that.

  16. Annie,

    There’s no such thing as comparative criminal prosecution.

    Bringing up the crimes of Bush when discussing the crimes of Obama is known as “IRRELEVANT.”

  17. Annie, it is interesting to compare the actions of Bush/Cheney with Obama. An honest assessment is what is demanded from citizens.

  20. Jill, Paul here would love to discuss Bush’s righteousness with you, lol.

    1. Annie – I am going to shift to my main man Eric. He has the real dope on Iraqi Freedom.

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