Wednesday, October 16, 2013

Toobin on Recess Appointments and Noel Canning

Jeffrey Toobin writes in the Daily Comment at The New Yorker that the Noel Canning case on recess appointments, now before the Supreme Court, could lead to an entirely new level of dysfunction in Washington--putting the current crisis to shame.  That is, if the Court strikes President Obama's recess appointments to the NLRB.  (Our latest post on Noel Canning, with links to earlier posts and lower court rulings, is here.)  Toobin explains:

If the ruling by the D.C. Circuit [striking President Obama's recess appointments to the NLRB] is upheld, the result will be a massive shift of power from Presidents to Senate minorities.  Forty senators will have the power to stop an agency from functioning.  Given the general political inclinations of the contemporary G.O.P., this would be a tremendous victory.  They don't want an N.L.R.B. at all, and they don't care for most other regulatory agencies, either.  The D.C. Circuit decision is more than a gift of a minority veto on individual members of a commission; it's a minority veto on the very existence of vunerable federal agencies.

The Canning case brings together several themes of recent political life: fierce congressional obstruction of President Obama, aggressive use of the courts by conservative activists, precedent-shattering rulings by conservative judges to undo the work of the democratically elected branches of government.  As with so many of these struggles during the Obama era, the outcome is far from certain.

http://lawprofessors.typepad.com/conlaw/2013/10/toobin-on-recess-appointments-and-noel-canning.html

Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink

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