The Supreme Court will ultimately settle the question of whether a president can make recess appointments while the Senate is technically not in recess after it hears oral arguments on the important separation-of-powers case on Jan. 13.
The case has stirred up constitutional scholars on both sides of the question. On Jan. 10 the Cato Institute sponsored a televised debate between Catholic University law school Professor Victor Williams, who has published extensively in the media in support of the president’s authority to make such appointments, and Professor Nicholas Rosenkranz, Georgetown University Law Center, and Senior Fellow in Constitutional Studies with the Cato Institute.
The 90-minute debate was moderated by Roger Pilon, director of the Center for Constitutional Studies, Cato Institute, and televised by C-SPAN 3.
At issue is whether Constitutional language adopted 226 years ago is being correctly interpreted and applied to the political realities of today.
Under the Constitution the president may “fill up all Vacancies that may happen during the Recess of the Senate” without going through the normal requirements of obtaining the “advice and consent” of the Senate.
A year ago, when the Senate was arguably not in recess, President Obama appointed three members to fill vacant seats on the National Labor Relations Board (NLRB). Noel Canning, a business adversely affected by a subsequent NLRB decision, then challenged the constitutionality of the appointments in the D.C. Circuit. The three-judge panel found that the president had exceeded his authority, as have two other appellate courts since then in separate suits.
Williams has joined in the case as an amicus in favor of the NLRB and the presidency. As he wrote in a recent Huffington Post op-ed, “A destructive cycle of confirmation obstruction and subsequent partisan payback has intensified with each of the past four presidencies.”
During the Cato debate, Williams argued again as he has in the past that the dispute between the legislative and executive branches is a “political question” and one not suited to judicial resolution.
As Williams recently told the Washington Times, “Judicial oversight of recess appointments is a blatant conflict of interest. The court should stay out of this political, partisan fight.”