The Corner

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

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.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.

Most Popular

Elections

What Do Republican Voters Want?

The latest entry in the post-Trump conservatism sweepstakes was Marco Rubio’s speech at the Catholic University of America in early November. The Florida senator made the case for a “common-good capitalism” that looks on markets in the light of Catholic social thought. “We must remember that our nation ... Read More
White House

Impeachment Woes and DACA Throes

This excerpt is from episode 176 of The Editors. Charlie: Yesterday was the day on which the rain stopped and the sun hid behind the clouds and the eyes of the nation turned in unison toward Capitol Hill for the first day of public hearings in the impeachment of Donald Trump. The results of that first day were ... Read More
Books

The Houellebecqian Moment

We are living in the imagination of Michel Houellebecq. The bête noire of French literature has spent decades deploring the erosion of Western mores that he believes resulted from the sexual revolution of the 1960s. His last novel, Submission, revolved around the election of a theocratic Muslim to the French ... Read More
Culture

‘Epstein Didn’t Kill Himself’

It was just one more segment to fill out the hour, and thereby fill the long 24 hours of Saturday’s cable news on November 2. Or so it seemed. Navy SEAL Mike Ritland was on the Fox News program Watters World to talk to Jesse Watters about trained German shepherds like the one used in the raid that found ... Read More