The coming war over presidential appointmentsFeb 24, 2014, Vol. 19, No. 23 • By TERRY EASTLAND
President Obama and Senate Democrats have gone to great lengths to secure the appointment of executive-branch officers and judges and thus help advance his policies and programs. Obama has made recess appointments in a way no president before him did, an action now being challenged in National Labor Relations Board v. Noel Canning, which offers the Supreme Court the first occasion in its long history to opine on the until-now obscure recess appointments clause. Meanwhile, Senate Democrats have pushed through a new voting requirement for the upper chamber that effectively eliminates filibusters of the president’s nominees and hastens their appointment.
How those actions will affect the appointments terrain, and our politics more generally, is an unfolding story. Obama’s recess appointments are almost certainly unconstitutional, and he risks a decision by the Court that could weaken the office of the presidency. Even so, the new measure intended to curtail filibusters will make it easier for Obama to appoint executive officers and judges who share his views. The measure will work this effect for the balance of 2014 and, if the Democrats retain control of the Senate in the elections this fall, for the final two years of his presidency. In the new appointments war, Obama holds the upper hand.
The Constitution treats appointments in Article II Section 2, where the appointments clause sets forth the familiar process by which the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” cabinet officers and other top executive-branch officials as well as judges. Immediately following it is the recess appointments clause, which says: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
Writing in The Federalist, Alexander Hamilton said the former clause provides “the general method” of appointment while the latter clause supplements it with “an auxiliary method,” to be used in cases “to which the general method [is] inadequate.” In such cases, observed Hamilton, appointments are made “singly,” by the president only, and not “jointly,” as they are under the general method.
It bears noting that the general method does not allow for an appointment to occur unless the Senate approves the nomination, while the auxiliary method permits only a temporary appointment that is made without the Senate’s concurrence. A president acting under the auxiliary method thus does not have to win the agreement of a Senate that may otherwise reject his nominees. In fact, a president resorting to the auxiliary method may be doing that in order to evade the Senate’s advice-and-consent role. As Obama has done.
His (putative) recess appointments were made to fill seats in two parts of the regulatory state where, not surprisingly, the policy differences between the two parties are among the sharpest—the Consumer Financial Protection Bureau and the National Labor Relations Board.
On July 18, 2011, Obama nominated Richard Cordray as director of the CFPB, notwithstanding that 44 Republican senators had previously declared their opposition to any nomination for that position unless the bureau were significantly restructured. The Senate, with Democrats then holding a 53-seat majority, was still working under a rule of deep historical roots whereby a 60-vote supermajority was necessary to overcome a filibuster of a nominee and set up a confirmation vote. On December 8, 2011, Cordray received 53 votes to end the filibuster of his nomination, 7 shy of the number he needed, and thus a vote on his nomination was denied.
Meanwhile, over at the National Labor Relations Board, 2011 was winding down with three lawfully appointed members on a board with five seats. One of the three was a recess appointee whose tenure was to expire on January 3, 2012. So the board, which by law must have three lawfully appointed members for a quorum to issue decisions, soon would have just two such members.
On December 17, 2011, Obama made nominations to fill the existing vacancies. But rather than stick with the general method of appointment by resubmitting the Cordray nomination (or nominating someone more agreeable to the Senate) and pressing for confirmation of the two NLRB nominees, Obama changed course in order to avoid the Senate: On January 4, 2012, he invoked the recess appointments clause and announced his intention to install Cordray as head of the CFPB and to fill what had by then become three vacancies on the NLRB.
Jan 27, 2014, Vol. 19, No. 19 • By TERRY EASTLAND
Under our Constitution, a government agency may not act beyond the authority given it by Congress. Indeed, as the Supreme Court has said, “an agency literally has no power to act . . . unless and until Congress confers power upon it.”
The principle is basic, but in a significant matter the Department of Housing and Urban Development under President Obama has ignored it, to say no worse. Fortunately, a lawsuit now moving forward in the nation’s capital promises to compel the agency to quit its conspicuous overreaching.
The (legal) case against Obamacare.Dec 23, 2013, Vol. 19, No. 15 • By TERRY EASTLAND
The biggest political story in our domestic politics since 2009 has been, as it will be for the foreseeable future, health care. One part of this story is ripe for telling now: the constitutional challenge to the Affordable Care Act (ACA)—also known as Obamacare. That effort, you’ll recall, came in a series of lawsuits that few legal experts thought had much chance of succeeding. But victories in the lower courts led to new appraisals and a growing sense that, in the Supreme Court, the challengers just might win.
Another case of federal overreach. Dec 16, 2013, Vol. 19, No. 14 • By TERRY EASTLAND
A question: Are Texas and all its agencies and local governments breaking the law? The answer is that they probably are, according to the Obama administration and its Equal Employment Opportunity Commission. But the Texas attorney general, Greg Abbott, isn’t waiting for the EEOC to investigate and bring charges. Last month, in a preemptive strike, he sued the commission. The case is Texas v. EEOC.
Rob Astorino, successful New York Republican Dec 2, 2013, Vol. 19, No. 12 • By TERRY EASTLAND
On November 5, Republican Rob Astorino was reelected executive of upscale Westchester County, which lies directly north of New York City, between the Hudson River and Long Island Sound. Back from a week of postelection beachifying in Puerto Rico, Astorino is already thinking about running for office again—next year, for governor, against the incumbent Democrat, Andrew Cuomo, who intends to seek a second term.
Hosted by Michael Graham.6:00 AM, Jul 7, 2013 • By TWS PODCAST
WEEKLY STANDARD executive editor Terry Eastland reviews the Supreme Court's decisions in Fisher v. University of Texas, United States v. Windsor, and Hollingsworth v. Perry.
Terry Eastland, sweet and sour stalker.Jun 17, 2013, Vol. 18, No. 38 • By TERRY EASTLAND
My wife says the only thing I’ll plant is what I can eat. Not entirely true, I tell her. I point to certain things I’ve planted: the cluster of yellow iris in the side yard, the bunch of white iris in the backyard, and the large spread of irises of many colors in the front yard, under the crape myrtle.
Politics reign supreme.2:46 PM, Jan 29, 2010 • By TERRY EASTLAND
Regarding Obama v. SCOTUS majority in Citizens United, which continues to be a story at least in Washington: Count me among those who believe that a president may criticize an opinion by the Court. As Lincoln once said (though before he became president) a Supreme court decision is not a “thus sayeth the Lord.” Even so, there are better and worse ways for a president to take on a particular ruling, and Obama’s was, to say the least, provocative.
Colleges are doing away with their racially exclusive programs--even though they would prefer not to.11:00 PM, Mar 24, 2004 • By TERRY EASTLAND
YEARS AGO, once colleges and universities had decided to make race and ethnicity "a factor" in their admissions, many of them cast about for additional ways to advance educational opportunity for minorities. So they came up with scholarship and financial aid programs, freshmen orientation programs, and academic-enrichment programs, to name the most prominent. And they made sure that the programs were, as the lawyers say, racially and ethnically exclusive. Only minorities were eligible.
The former Supreme Court justice's records shed new light on Roe v. Wade.11:00 PM, Mar 10, 2004 • By TERRY EASTLAND
THE LIBRARY OF CONGRESS has just made public the accumulated papers of the late Supreme Court Justice Harry Blackmun, who served from 1971 to 1994. More than a half-million items fill 1,576 boxes. For obvious reasons, the papers on the abortion cases are likely to draw the most interest.
Is the liberal senator from North Carolina really capable of winning the South? Would he even need to?10:00 AM, Feb 3, 2004 • By TERRY EASTLAND
JOHN EDWARDS has a problem even if he wins the South Carolina primary today.
Why Howard Dean is wrong and the capture of Saddam Hussein does matter.11:00 PM, Dec 17, 2003 • By TERRY EASTLAND
IN HIS INITIAL COMMENTS on Saddam Hussein's capture, President Bush didn't mention the main reason we went after the brutal dictator in the first place. Not that Bush needed to go into the principal justification for invading Iraq. But the matter is worth bringing up--especially since Howard Dean, whose candidacy has been fueled by his opposition to the president's decision to go to war, is the odds-on favorite to capture the Democratic presidential nomination.
Senator John Cornyn on limited government, how the Senate works, and the pursuit of a filibuster-proof majority.11:00 PM, Dec 3, 2003 • By TERRY EASTLAND
ASKED HOW his life has changed during his first year as the junior senator from Texas, John Cornyn has a quick answer: "It's totally unpredictable." He explains: "I was used to having a schedule and keeping it. . . . But here you're subject to a calendar set by the leadership. It's very hard to plan things."
A look at how the arguments against the Pledge of Allegiance are shaping up for the Supreme Court.12:00 AM, Oct 22, 2003 • By TERRY EASTLAND
JUSTICE ANTONIN SCALIA won't participate in the Pledge of Allegiance case, which the Supreme Court last week accepted for review. Justices typically don't explain their recusals, and Scalia didn't say why he took himself out of Elk Grove School District v. Newdow.
The code of conduct for federal judges says that a judge should avoid public comment on the merits of a pending case.
Howard Dean won't touch the $87 billion question; he's convinced "It's the tax cuts, stupid."11:00 AM, Oct 15, 2003 • By TERRY EASTLAND
DURING A LUNCH LAST WEEK with reporters and editors of the New York Times, Howard Dean was asked how he would vote, were he a member of Congress, on the proposal to spend $87 billion to cover troop deployment and reconstruction costs in Iraq. Dean, the front-runner for the Democratic presidential nomination, refused by saying, "I'm not running for Congress; I'm running for president."
By that logic, Dean needn't answer any question on which a member of Congress might vote. But does the candidate really believe his logic?