Two years ago, President Obama defied the Constitution’s limits on executive power with three appointments to the National Labor Relations Board (NLRB).  Rather than allow the Senate to provide “advice and consent” on executive nominees, the President declared that Congress was in recess and simply installed his nominees by executive order.  As federal appeals courts would later decide, the President’s unilateral action was in violation of our government’s separation of powers.

Now the Supreme Court is reviewing the case, known as National Labor Relations Board v. Noel Canning.  The ruling – which is not expected until June – could have a major impact on the future power and scope of the executive branch.  Although the Constitution allows for presidents to make recess appointments, President Obama is the first to attempt to do so when the Senate was in “pro forma” session and conducting congressional business.  “Pro forma” sessions have been used in the past under both Democratic and Republican leadership to block recess appointments.

Administration’s Authority Questioned

On January 13, the Supreme Court heard more than 90 minutes of oral arguments on behalf of the Obama Administration, bottling company Noel Canning, and Senate Republicans.  The justices, even those nominated by President Obama, questioned the Administration’s authority.  Justice Elena Kagan, an Obama appointee, noted that “it really is the Senate’s job to determine whether they’re in recess or whether they’re not.”  Justice Anthony Kennedy pointed out the possibility of recess appointments being made any time the Senate took a brief break, such as lunch.

Even the White House’s argument that no business is conducted during “pro forma” sessions is flawed.  In fact, the Senate passed legislation during a “pro forma” session just days before President Obama made his appointments to the NLRB. 
At the center of the Supreme Court case is an NLRB ruling against the bottling company.  The company contends that the board lacked a quorum because the majority of NLRB members were appointed illegally.  The board’s decisions, therefore, should be null and void. 

Executive Power Grabs

A Supreme Court ruling against the President would provide a needed rebuke of the Obama Administration’s frequent power grabs.  For too long, the Administration has tried to rewrite the Constitution to support its political agenda, using executive fiat to give agencies more rulemaking power and selectively suspending the enforcement of laws, such as Obamacare and immigration laws.   In a recent cabinet meeting, President Obama threatened even more executive action, saying, “I’ve got a pen, and I’ve got a phone.  And I can use that pen to sign executive orders and take executive actions and administrative actions.”

 
In similar autocratic fashion, Senate Majority Leader Harry Reid (D-Nev.) recently rammed through new Senate rules and reversed 225 years of precedent by invoking the “nuclear option.”  Presidential nominees, like those appointed to the NLRB, no longer have to earn 60 votes in the Senate but can be approved by a simple majority.   They are now virtually assured of confirmation when Senate leadership and the White House are controlled by the same political party.

The Supreme Court’s decision will be a defining moment.  It is crucial that we protect the integrity of the Senate and the constitutional checks and balances our Founding Fathers envisioned.  The unbridled excesses of the Obama Administration threaten to set a dangerous precedent.  I hope the Court will reinforce our Founding Fathers’ farsighted vision of a limited government with limited powers.