Diminishing the presidency
By John Yoo, The Wall Street Journal
A year ago this month, President Obama bypassed the Senate's advice-and-consent power by naming three new members to the National Labor Relations Board and appointing Richard Cordray to head the Consumer Financial Protection Bureau. Mr. Obama declared that these were "recess" appointments even though the Senate -- by its own definition -- remained in session.
The D.C. Circuit Court of Appeals on Friday unanimously struck down these unilateral appointments, but the three-judge panel's decision in Noel Canning v. NLRB did more than knock a few people out of work and effectively nullify a year's worth of rules that eased union organizing and regulated mortgages and credit cards.
Judge David Sentelle, given an opening by the unprecedented White House power grab, issued a ruling that has profound ramifications for the office of the presidency. He and judge Karen Henderson rejected the very idea of "intra-session recess appointments." Mr. Obama thus has jeopardized a vital executive power for all future presidents.
Senate advice and consent serves as an important counterweight in the unending struggle between the president and Congress. The Constitution, however, allows presidents to temporarily fill "vacancies that may happen during the recess of the Senate," because in the late 18th century legislative sessions were short and breaks could last as long as nine months.
Since 1823, presidents have filled offices that opened even while Congress was in session, on the legal fiction that the vacancies continue to "happen" when the recess came. In the early 20th century, presidents also claimed that, in addition to the official break between a Congress's first and second years, a short Senate adjournment constituted a recess when unilateral appointments could be made.
Mr. Obama's defenders may claim that his exercise of appointment power differed little from that of his predecessors. President George W. Bush, for example, appointed William Pryor in 2004 as a federal judge and John Bolton as U.N. ambassador in 2005 during Senate adjournments.
President Bush acted after he became frustrated with Senate inaction on his nominees. He was also frustrated by Majority Leader Harry Reid's maneuver, beginning in 2007, to keep the body in "pro forma" session where it continued to meet but no important business was conducted. But Mr. Bush respected the Senate's authority over its own rules, and he declined to unilaterally select officials in violation of the Appointments Clause.
Not so Mr. Obama, whose unwarranted use of executive authority has provoked the D.C. Circuit to reverse 190 years of constitutional practice. Though the Senate remained in session last January and even passed major legislation during that time, Mr. Obama went ahead and appointed the NLRB and CFPB officials anyway. The Justice Department argued that the president could decide for himself whether the Senate was really in session and whether it was "genuinely capable of exercising its constitutional function."
Under the Constitution's separation of powers, each branch of government sets its own internal rules. Only the Senate can decide to allow a filibuster. Only justices decide to issue written opinions, or decide cases by majority vote. The president chooses to whom he listens, with whom he discusses, and through whom he transmits his decisions.
Mr. Obama, however, claimed the right to judge the legitimacy of the other branches' proceedings -- a seizure of power unheard of in American history. A future president employing this power could ignore legislation that he thought insufficiently debated, recognize laws that had not met the filibuster's 60-vote requirement, or only enforce unanimous Supreme Court decisions.
In Noel Canning, Judge Sentelle confronted more than one instance of executive overreach. Mr. Obama has also distorted the Framers' presidency into an instigator of domestic revolution, rather than as the protector of the national security and the enforcer of the laws.
As Alexander Hamilton explained in Federalist 70, an energetic executive "is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws." The Bush administration made decisions that risked conflict with congressional policy. They were made during the 9/11 attacks to protect national security against an unforeseen enemy who refused to fight according to the rules of civilized warfare.
This was in keeping with the Constitution's design. Only the president can respond with the "decision, activity, secrecy, and dispatch," in the words of Federalist 70, to confront an immediate emergency. Mr. Bush made grave choices -- on Guantanamo Bay, war in Afghanistan, tough interrogation and aggressive wiretapping of terrorist communications -- not for narrow partisan advantage or to improve his re-election chances. He defended the president's constitutional authority over what the Federalist calls "the direction of war" to stop future terror attacks.
A glance at the extensive listing of Congress's prerogatives in Article I, Section 8 of the Constitution makes clear that the Framers had no such expectations of the president at home. They understood that Congress would exercise the primary power to legislate with regard to domestic affairs, and the president's main power to restrain the legislature was with a veto.
Mr. Obama, however, has wasted his office's constitutional capital for domestic advantage. He did not fill a vital office during a time of crisis; instead his appointments to the NLRB rewarded constituencies vital to his re-election and burnished his populist credentials. This is of a piece with another unprecedented exercise of executive power: Mr. Obama's refusal to enforce laws that he dislikes. His Justice Department, for instance, will not deport illegal immigrants as required by law. Mr. Obama's abdication of a core constitutional responsibility as a way of advancing his political fortunes is a remarkable and troubling turn in the history of the presidency.
Judge Sentelle's opinion best captures the Framers' original understanding of the Appointments Clause, but the case will almost certainly be appealed to the Supreme Court. The ruling is in conflict with the decisions of other federal courts, offers a broad holding on when a vacancy "may happen," and has significant regulatory impact.
The justices could avoid a broader confrontation with the president -- this is the court, after all, that shied away from striking down ObamaCare -- by finding that the Senate was in session and dispatching the NLRB's rump officers in short order. The administration, however, is not helping itself: The NLRB officials are openly disobeying the D.C. Circuit's ruling by continuing to stay in their posts and conduct business, one must assume with the White House's approval.
Every president should seek to leave the office stronger than when he found it. The Framers understood that the future's challenges could not be anticipated, and so the executive's powers should not be wasted for short-term political advantage. Mr. Obama holds the prospect of leaving a diminished presidency that will put his successors in a far worse position than the one he inherited. That, unfortunately, will prove to be his historical legacy unless he changes course.1/31/2013