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Home Front: Politix
This Supreme Court Case Could Upend The Separation Of Powers
2014-01-11
HT: Weasel Zippers
The Supreme Court is scheduled to hear oral arguments on Monday in a case with potentially dramatic long-term implications for the balance of power between the executive and legislative branches.

The legal question is whether the president may temporarily appoint people to staff executive branch agencies when Congress is not conducting business but also not technically in recess -- known as pro forma sessions. Noel Canning, a business based in Washington State, claims that actions taken against it by the National Labor Relations Board (NRLB) are invalid because they relied on the decisions of recess appointees to the board who were put in place during pro forma sessions.

A decision against the Obama administration "would overturn the long-settled understanding of the Recess Appointments Clause, upsetting the equilibrium between the political branches created by our Constitution's framers," said Elizabeth Wydra, the chief counsel for the Constitutional Accountability Center, a liberal legal advocacy group.

Wydra called the lawsuit "ahistorical and myopic."

A ruling against the government in NLRB v. Noel Canning stands to invalidate a series of NLRB actions aimed at cracking down on unfair business practices. Depending on the scope of the decision, government actions taken under previous presidents may also be implicated.
Posted by:Uncle Phester

#3  Just about anything that chops away the power of the executive brach to make law independent from the legislature is good news. We have far too much power in the increasingly imperial Presidency and executive branch.
Posted by: OldSpook   2014-01-11 23:57  

#2  I hope SCOTUS recognizes the dangers of an executive branch dictatorship where the executive branch issues executive orders dictates, makes appointments during pro forma sessions, and uses the bureaucracy in a vindictive way to usurp the balance of power between the branches of government. After the Obamacare "tax" penalty decision, I am less hopeful SCOTUS will do the right thing.
Posted by: JohnQC   2014-01-11 10:10  

#1  The 'appointment while adjourned' comes from an era of horse backed travel and the congresscritter had a real job to keep going outside being a full time ward heeler politician. If Congress was limited in time in session (and therefore likely to cause less damage) I could see the point. However, today there is no rationale, regardless of Trunk or Donk, for these appointments. It's merely a pocket veto by the legislative branch and a point of bargaining between the two branches. However, if you don't want to bargain but dictate, the patronage process becomes constipated.
Posted by: Procopius2k   2014-01-11 08:01  

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