The Right Coast

Editor: Thomas A. Smith
University of San Diego
School of Law

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Saturday, January 26, 2013

Barack’s Obama Recess Appointments Unconstitutional: Why a federal court is blocking the president’s picks for the National Labor Relations Board. - Slate Magazine

If you’re still bothered by the idea of the president rather than the Senate deciding on the Senate’s own rules—after all, concerns about separation of powers and a power-hungry executive come into play—consider this argument defending the Jan. 4 appointments from Akhil Amar and Timothy Noah. They point out that McConnell did not speak last January for a majority of senators. If anyone did, it was Majority Leader Harry Reid. “Neither David Sentelle nor Mitch McConnell should decide when the Senate is or is not in session,” Akhil said when I talked to him today. “Fifty-one Senators should decide.  It's awkward when three Republican appointed judges substitute their decision for that of a Democratic controlled Senate.” Akhil also called one part of the D.C. Circuit’s ruling (not joined by a third judge, Thomas Griffith) “radical.”


Having Ahkil call something radical is pretty precious, but I suppose it might be radical if indeed the decision applies a rule of law that held for the framing, but has not been used since 1847 or whenever. Still, in my humble view, the law's the law. This does rather tee up for the Supremes the question of, are you an originalist, or ain't you? Well, well, well. --ts

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