Shane on Noel Canning

The recent DC Circuit opinion invalidating the President’s recess appointments to the NLRB may alter the balance of power between the branches as much as INS v. Chadha did. Peter Shane (no great fan of executive power grabs) makes the case:

[In Chadha, the Supreme Court said that the Constitution] gives Congress only one way to legislate: Majorities in both the House and the Senate must agree on a text to enact, and the president must sign it, or two-thirds of each House must vote to override the presidential veto. Neither the House, nor the Senate is entitled to make law all by itself. In a January 25 ruling, however, the U.S. Court of Appeals for the DC Circuit pretty much assured the Senate exactly that power. Even worse, it afforded that power not to a majority of senators, but to a minority. . . .

Chiefly because of obstruction from the senators in the Republican minority, the Senate had already established a record of allowing administrative nominees to languish before confirming even noncontroversial appointments. . . . Under [the D.C. Circuit’s view,] it is painfully evident what a president may do if (a) he sends to the Senate a timely nomination for an executive branch position that becomes vacant while the Senate is formally convened and (b) a minority of senators just sit on the nomination and refuse to bring it to a vote. In a word, “nothing.”

The constitutional impotence that the DC Circuit would impose on the president means that filibustering senators can prevent an agency from functioning — thus effectively repealing the law that created the agency and authorizing its functions — simply by refusing to confirm an agency head or enough voting members to constitute a quorum.

At least one admin law prof I know has tried to downplay the importance of the ruling, by insisting that these types of power shifts end up hurting both parties equally (there will not be a Democratic President forever). That may be too sanguine. Limiting the power to enforce the law helps whichever party has a more laissez-faire, small government agenda. Moreover, as anyone who followed the divergent rulings in the HillaryCare and Cheney Energy open government cases knows, the precedent may be applied quite differently in different circumstances.

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