Senate Republicans Petition Supreme Court to Smack Down Obama’s NLRB Appointments
It looks like there could be a Supreme Court showdown over whether President Barack Obama violated the Constitution when he appointed members to the National Labor Relations Board back in January.
All 45 Senate Republicans have filed a friend of the court brief asking the justices to uphold the D.C. and Second Court’s rulings that the president did just that. The Obama administration, of course, disagrees and wants to high court to reverse.
The constitutional question to be answered is whether the Senate or the President gets to decide when the former is in recess, and thus when the President can make recess appointments to bypass the Constitution’s advice and consent requirement.
Important? You betcha.
As the NLRB case shows, if the President gets to decide when the Senate is in recess then the advice and consent requirement becomes effectively a voluntary procedural hoop that the President can choose to ignore whenever a nominee can’t get the necessary votes for confirmation. Such a development would effectively nullify the Senate’s only real quality control measure in staffing the executive branch.
There’s also an added bonus. If the Court accepts the case, it will be one of the few decisions that deal with actual constitutional text, instead of the “penumbras” and other implied meanings that the justices have imported over the years.
Then again, that may be why this case gets snubbed.