Canning: How to Roll Back Overreach without Impairing the Vigorous Executive

by John Yoo

I think the decision today in NLRB v. Noel Canning is correct. It brushes back Obama’s unprecedented stretching of executive authority to appoint lower officials without the Senate, but it preserves the more traditional power for the next president. The whole affair puts on display President Obama’s abuse of presidential power for small-ball politics. Previous presidents have claimed expansive powers in the face of great emergencies, whether it be the Civil War, the Great Depression and the rise of fascism, the Cold War, or the 9/11 attacks. Obama risked the executive power built by generations of presidents just to win a few pro-union decisions on the NLRB.  

It is clear that Justice Scalia has the better reading of the original Constitution. He and the conservative Justices Thomas, Alito, and Chief Justice Roberts, would have held that the president cannot make appointments except for vacancies that arise between the first session of Congress and the second session of Congress, which generally matches the first and second years between House elections. That is the better reading of the constitutional text. If Scalia had been able to attract the swing vote of Justice Kennedy, he would have succeeded — ironically, given his long support for a robust executive — in permanently restricting presidential power.

Instead, the majority — Justice Breyer writing — upheld a long historical practice of presidents filling vacancies, even those that occur when the Senate is in session. The majority found that Senates have long allowed presidents to fill vacancies during recesses that are as short as ten days. But the Court rejected Obama’s unprecedented claim that he could use this power even when the Senate was currently meeting. Obama made the dangerous argument that he could decide when the Senate was really conducting business or not — a claim foreclosed by the Constitution, which gives to Congress the sole power over its own proceedings. This was a bridge too far for every member of the Court, liberal or conservative. Breyer and the majority of the Court have rebuked President Obama, but at the same time have preserved the ability of future presidents to use the traditional power. Two years from now, a President Hillary Clinton or a President Ted Cruz will be grateful for the Court’s decision today, as are all who support a vigorous executive, but one limited to its proper duties and responsibilities.

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