Photo credit: afagen (Creative Commons)

The Obama administration has proven itself keen on issuing unilateral decrees and ruling by fiat. Naturally, this philosophy has earned significant scorn among those who believe in the balance of power guaranteed in the U.S. Constitution.

One of Obama’s most contended decisions related to his first term recess appointment of three National Labor Relations Board members – an overstep lower courts ruled unconstitutional. While the chief executive is permitted to make recess appointments, Obama’s detractors pointed out that Congress was not in recess, but a “pro forma” session defined by frequent short adjournments.

This week, the U.S. Supreme Court will hear testimony in the case before issuing its own decision. Justices will either uphold or overrule the appellate court decision that recess appointments may only be made between congressional sessions, and only in the event there is a new vacancy during that period.

The case, initiated by Oregon bottling company Noel Canning, will have major implications regarding a president’s power to make recess appointments. In its early stages, the case revolved around the effects Obama’s appointments might have in strengthening labor unions.

Now, the scope of the Supreme Court’s involvement is limited to defining a president’s ability to use executive power.

Nicholas Quinn Rosenkranz of the Georgetown University Law Center will present the case against Obama. He said he is confident that those on the other side of this issue will be unable to prove their points.

“I don’t think this is a close case,” he said, indicating he foresees a unanimous decision in favor of Noel Canning.

Rosenkranz explained that, in order to uphold Obama’s appointments, justices would have to believe he is constitutionally permitted to make appointments whenever Congress is adjourned, and that he may do so to fill existing vacancies. Furthermore, he said the court would need to rule that pro forma sessions are not really sessions at all.

While Obama shows no signs of scaling back his imperial presidency, a Supreme Court ruling against him in this matter would at least send the message that people are paying attention.

–B. Christopher Agee

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Photo credit: afagen (Creative Commons)

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