Supreme Court has Final Word on ‘Recess’ Appointments

Sen. Mike Johanns

Almost. two years ago, President Obama tried to skirt constitutional limits of the Executive Branch by ignoring the Senate’s role of confirming nominations to the National Labor Relations Board (NLRB) and Consumer Financial Protection Bureau (CFPB). In January 2012, when the Senate was in session, the President sidestepped the Senate’s authority, known as advice and consent, to push his nominations into power without the necessary Senate confirmation.

Since then, multiple lawsuits from businesses adversely affected by the illegitimate “appointees” have been filed. Despite three federal court rulings invalidating the President’s actions, the so-called “appointees” continued operating. A fierce outcry in Congress finally prompted the President to nominate new members to the posts via the process outlined in the Constitution, designed to maintain the separation of powers between equal branches of government.  But for many businesses, the damage had been done.
It’s now up to the Supreme Court to sort out the constitutionality of the actions by the board since the “appointments” in question. The Supreme Court agreed earlier this year to hear NLRB v. Noel Canning, in which a Washington state canning company claims a decision by the NLRB affecting their business was invalid because the board members who made the decision were not constitutionally confirmed by the Senate.  A ruling by the Supreme Court upholding the lower federal court opinions could reverse the actions of the so-called appointees, and could prevent similar future attempts by the President to usurp power greater than what is granted in the Constitution.
I recently joined my Republican colleagues in the Senate in filing a brief in the Supreme Court challenging the President’s appointments.
At the heart of the issue is the President’s attempt to expand his power beyond what is granted in the Constitution. As elected officials, we have an obligation to honor the oath we took to uphold the Constitution and respect the limitations placed on our respective branches of government. Checks and balances are in place for a reason, and when one branch of government oversteps its authority, it is up to the others to reestablish balance.
In the Senate, I’ve introduced legislation preventing federal dollars from being spent to implement any NLRB decisions or regulations made without a Senate-confirmed quorum of NLRB members. I also wrote the contested “appointees” multiple times calling for them to step aside and clear the way for new appointees.
The President has repeatedly said that all Americans should play on a level playing field, and “nobody’s above the law.” It’s time he starts practicing what he preaches. The Constitution’s checks and balances are serious business. They are critical for our system of government, and if any branch of government steps out of line, the others must restore the order. The Supreme Court has a tremendous opportunity to do just that when it hears the case in early 2014.