In the coming days, the U.S. Supreme Court will hear oral arguments in the case of Noel Canning versus the National Labor Relations Board (NLRB). This case arose when President Obama made several so-called recess appointments to the Board on January 4, 2012 when the Senate was not formally in recess. This landmark case is expected to determine how much leeway the President has to make appointments without Senate confirmation, and more significantly, it will have serious implications on the broader powers of the presidency itself and the system of checks and balances.
The United States Court of Appeals for the District of Columbia Circuit already correctly ruled that these appointments were unconstitutional. The most significant reason President Obama’s actions are inconsistent with the law is the NLRB “recess” appointments were made when the U.S. Senate was in continuous “pro forma” sessions, meaning that the Senate was not actually in recess. The President merely declared that Senate was in recess and arrogated himself the authority to make the appointments.
The court’s findings show that President Obama has set a very dangerous precedent by completely bypassing the traditional nomination process and circumventing the Senate’s constitutional authority to advise and consent. The framers never intended for any president to have the unilateral power to appoint people to high-level positions except during a legitimate recess; hence, the U.S. Constitution specifically included a clause that gave the Senate the power to give its "advice and consent" to presidential appointments. As many of our county’s students learn, the framers created a system of checks and balances, for the purpose of avoiding presidential overreach.
President Obama effectively circumvented the Senate’s advice and consent, preventing any due process from taking place. In fact, two nominees failed to complete a Senate committee’s basic questionnaire that would have disclosed potential conflicts of interest, let alone the scrutiny of testifying before the U.S. Senate Committee on Health, Education, Labor and Pensions. This vetting should and quite possibly would have disqualified Obama’s nominees from taking office in the first place.
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