Gridlock and Executive Power: ISIS, Immigration & Obamacare

In NLRB v. Noel Canning, the Solicitor General argued that the President’s novel reading of the recess appointment power was justified as a “safety valve” in response to “congressional intransigence.” All nine Justices emphatically rejected this position, finding the President’s three appointments, made during a three-day break, could not be saved because of an obstructionist Senate. Yet, the reliance on “congressional intransigence” as a rationale for broadly interpreting inherent executive powers has been a hallmark of the Obama Presidency. As part of his “We Can’t Wait” platform, President Obama routinely cites Congress’s obstinacy to his agenda as a ustification to engage in a series of executive actions that suspend, waive, and even rewrite statutes. The lesson from Noel Canning is clear—gridlock does not allow the president to flex his Article II powers, as a means to release a safety valve of pressure in Congress.

 

Professor Josh Blackman of the South Texas College of Law will discuss the Court’s unanimous holding in Noel Canning in the context of the President’s unilateral action with respect to ISIS, Immigration & Obamacare.