The Daily Caller

The Daily Caller
A general view of the U.S. Supreme Court in Washington Dec. 3, 2013. (REUTERS/Jonathan Ernst) A general view of the U.S. Supreme Court in Washington Dec. 3, 2013. (REUTERS/Jonathan Ernst)  

Business groups optimistic on controversial Obama appointments

Who decides when the Senate is in recess? Business groups are optimistic the Supreme Court will side with them on that question.

The Workplace Fairness Institute circulated press clips Tuesday from the oral arguments in National Labor Relations Board v. Noel Canning. The headlines include “SCOTUS Skeptical on White House Recess Appointments” and “Justices Lean Toward White House In White House Fights Over Recess Appointments.”

The origins of the case dates back to January of 2012, when President Obama sidestepped opposition from Senate Republicans and made so-called recess appointments to the NLRB. But the Senate was not officially in recess.

A Washington state-based bottle distributor, Noel Canning, challenged the legality of the president’s appointments after NRLB accused the company of violating the National Labor Relations Act by refusing to enter a collective bargaining agreement.

Noel Canning argued that NRLB’s charge was illegitimate because certain members of the board were appointed unconstitutionally.

The United States Court of Appeals for the District of Columbia Circuit agreed with the bottle distributor and ruled that these appointments were a breach of the Constitution.

The Supreme Court has yet to rule on the matter, but pro-business groups liked what they heard at oral arguments Monday.

“Breyer, Kagan and Alito seemed skeptical about a system in which the president gets to decide when Congress is in recess,” Karen Harned of the National Federation of Independent Business’s Legal Center told The Daily Caller News Foundation.

This case has caught the attention of small business owners says Harned, “They are concerned that they are seeing more and more executive overreach. Our system of checks and balances is meant to protect individual liberty. It is meant to protect us from the government.”

Utah Republican Sen. Mike Lee said in a statement on Monday, “In making the appointments, the president took a power that does not belong to him. It rightfully belongs to the American people, through their representatives in the Senate, and is an essential constitutional check on the executive branch.”

The government argues that Obama’s use of the recess appointment power falls within precedent. Solicitor General Donald Verrilli Jr noted that throughout our nation’s history 14 presidents have temporarily appointed 600 individuals and thousands of military officers in positions that were vacant when the Senate went into recess at any point.

Verrilli urged the justices not to interfere with the current system. “We have, I would submit, an equilibrium that has emerged,” he explained. “What we are advocating here is the status quo.”

Harned told TheDCNF this argument privileges custom over the Constitution.

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