Category Archives: The Executive

Powers ch 4, Short Course ch 5

When government stops working

The court of appeals for the DC circuit ruled today that President Obama’s recess appointments for the National Labor Relations Board were unconstitutional.  This ruling essentially nullifies a large number of decisions made by the board since he made these appointments a little over a year ago.


Using original meaning and textualism, the appellate court noted that the founders used the word “the” in front of “Recess” indicating only one.  And, in referring to other times when the Congress may not be meeting, the word “adjourn,” in some form, was employed.  Therefore, “the Recess” cannot be equivalent to the intrasession adjournments.  Additionally, the combination of “the Recess” and “the next Session” in the recess appointments clause provides further justification for holding that adjournments are not recesses.  The court then continues to justify the ruling through historical and legal precedent, including INS v. Chadha and Myers v. USChadha is cited to note that frequency of an action (including legislative vetoes in bills or making recess appointments during intrasession adjournments) does not make that action constitutional.  Myers provides support for examining the language of the constitution closely when dealing with the appointments clause.


These parts of the ruling are certainly fabulous and clear examples of the application of the legal approaches describe in the CLCA textbooks.  And the legal analysis is well done, as expected.  However, the opinion avoids the approach of pragmatism.  And perhaps it is time for a heavy dose of pragmatism at least when interpreting the Appointments clause.  As the New York Times reports[1], this ruling leaves the NLRB with only one member and essentially shuts down part of the executive branch and prevents the President from executing the National Labor Relations Act because the Senate will not confirm his nominees.  The same situation is repeated within the judiciary as has been repeated in state of the judiciary reports from Chief Justices Rehnquist and Roberts for years.


The opinion of the court of appeals notes some legislative business that occurred over the courts of these various adjournments.  We documented that business only occurs during some of these periods.[2]  And certainly the judiciary is managing to complete cases even though it is woefully understaffed.  Passing a constitutional amendment to provide greater discretion for recess appointments or forcing the Senate to provide some hearing or vote on presidential nominees is DOA in this polarized political climate.  The US is going to appeal this ruling to the US Supreme Court.  Based upon precedent and jurisprudential philosophies, we would predict the US would lose.  If so, the appointments process is also DOA.  Is this a situation that calls for pragmatism and a deviation from more “legal” forms of interpretation?


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Filed under The Executive, The Judiciary, The Legislature, The Separation of Powers System in Action, Understanding the U.S. Supreme Court

If it quacks like a recess, is it a recess?

George Will’s column[1] on October 10, 2012 ridiculed and criticized Obama’s use of recess appointments.   As Charlie Savage reported in January, Obama granted recess appointments in January while the Senate was in “pro forma” session.  In a pro-forma session, most of the Senate is away from the chamber and one Senator comes back every few days to bang the gavel.  Thus, the Senate isn’t truly in recess and recess appointments are not allowed—at least this is what Senate Minority Leader McConnell and George Will seem to argue.

As Will frames the problem, it is one of senatorial or congressional power.  The Senate determines when it is and is not in session and the President is acting beyond his powers to make that determination.  The framing of the problem here is very reminiscent of Nixon v. US where the Court demurred under the political question doctrine to the Senate regarding the definition of “try” in Article 1 Section 3.  “Because the Constitution unambiguously gives the Senate the power to regulate its proceedings, Obama’s opinion that the Senate was not in session when it said it was…has no force or relevance.”[2]

The President’s view, not surprisingly, is very different.  It is not an issue of senatorial power, but of presidential power.  The Constitution provides the president with the power to fill vacancies during the recesses of Congress (Art. II Sec. II).  However, the minority keeps the Senate in “pro forma” session, but there is no quorum present for those sessions and no business is completed.[3]  The political maneuver prevents the President from filling vacancies and “taking care” of executing the laws of the nation.  Regardless of the ‘banging of the gavel’ by one member every few days, Obama’s White House Counsel suggests, the Senate is not doing business and thus preventing from fulfilling his “constitutional function”.[4]  And according to cases like Nixon v. Fitzgerald (1982) and Myers v. US (1926), the president must be able to organize the executive branch as he sees fit to fulfill his constitutional duties.

Would this be a political question or would the Court hear this case to decide if it is an issue of executive or legislative power?  For that matter, which is it–an executive or legislative powers question?  And how would the justices decide?  Based on the Chief Justice’s opinion from the Healthcare cases, he would fall on the side of President Obama.  If it acts like a tax it is a tax.  So if it acts like a recess, then it is a recess.  Or is he more likely to revert to form and interpret the constitution more strictly and defer to the Senate?

[2] ibid

[3] Will does note that twice in 2011, legislation was passed during pro forma sessions; however, again there would have been sufficient senators in the chamber to perform business.


Filed under The Executive, The Judiciary, The Legislature, The Separation of Powers System in Action

Let them eat cake

In Kiobel v. Royal Dutch Petroleum et al, the Supreme Court will decide if the Alien Tort Statute can apply to a corporation.[1]  Royal Dutch argues that as a corporation, it cannot be sued for violating human rights.  The statute only reaches individuals or natural persons.

The Court of Appeal for the Second Circuit agreed writing,

“We hold, under the precedents of the Supreme Court and our own Court over the past three decades, that in ATS suits alleging violations of customary international law, the scope of liability—who is liable for what—is determined by customary international law itself. Because customary international law consists of only those norms that are specific, universal, and obligatory in the relations of States inter se, and because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights, we hold that corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the ATS. Accordingly, plaintiffs’ ATS claims must be dismissed for lack of subject matter jurisdiction. (Docket Nos 06-4800-cv, 06-4876-cv; 1-2)

So, under international law corporations are not considered persons and therefore gain immunity from a suit for liability.  Yet in Citizens United v. Federal Election Commission, the argument was exactly opposite.  Corporations ARE persons under the Constitution and have rights under the First Amendment.

The Court has recognized that First Amendment protection extends to corporations. This protection has been extended by explicit holdings to the context of political speech. Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” [First Nat. Bank of Boston v.] Bellotti [(1978)]. The Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not “natural persons.” . . .[2]

Does it make sense for corporations to have their cake and eat it too?  Corporations are not persons where it provides protection (liability) and are persons when it provides protection (First Amendment).  Can they have it both ways?  Can corporations be non-persons in international and statutory law and persons in constitutional law?  Perhaps the docketing of this case suggests that the Court will address this seeming contradiction.  Or perhaps, the bundling of the case with Mohamad v. Rajoub signals that this contradiction will remain because the Court is unlikely to wade into an area of international diplomacy.  Allowing individuals to sue political entities and parties in the US courts can affect the ability of the executive branch to conduct foreign policy.  If this is the case, then the person/non-person status of corporations is likely to continue, and continue to provide a great deal of legal protection to US corporations.

Addendum November 7, 2011: Today a federal judge blocked the new graphic cigarette labels.  The temporary injunction was issued because the corporations are likely to prevail on their challenge–the law violates their right to free speech. (

[1] This case will be heard in conjunction with Mohamad v. Rajoub et al.  This case involves a suit against the PLO and the Palestinian Authority under the Torture Victim Act.

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Filed under Freedom of Speech, Assembly, and Association, The Executive, The Judiciary