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Harlan Institute Assignment

March 28th, 2014

James Allen                                                                                                     AP Government
Table of Cited Authorities
National Labor Relations Board v. Noel Canning
Federalist Papers 67
U.S. Constitution, Article 2, Section 2
Letter from George Washington to William Drayton
Statement of Argument
For many American citizens that have voted for Obama in the 2012 Presidential Election, they may argue that the President has the constitutional duty to make recess appointments while the Senate is in recess. In my opinion, this is not what the Founding Fathers of our America envisioned. They basically anticipated a country where there was a system of checks and balances as well as separation of powers to keep one branch from becoming too powerful and keeping America from having a monarchy like France and Britain did in the 1700s. Part of the U.S. Senate’s responsibility is to advise the president about some of his/her appointments, and President Obama doing these appointments while the U.S. Senate is not meeting 7 days a week is outlandish and inappropriate in American politics. That is why the Supreme Court should not overturn a lower court’s decision and should crack down on President Obama making these recess appointments while the U.S. Senate is having pro forma meetings.
1)      One court case that was brought up to the Supreme Court was the National Labor Relations Board v. Noel Canning. In this court case, Noel Canning, who had worked for Pepsi-Cola products in the early 20th century, was negotiating with Pepsi-Cola’s union over some issues. Canning had submitted plans to this union for a vote to see if they would have gotten approved or not. After a while, when the union’s preferred plan was approved by a board, Canning argued that the agreement was not binding and it repudiated to integrate the vicissitudes into the new collective bargaining agreement. The union then sued Canning because they believed that the labor practice Canning had displayed about this agreement was out of line with the policies set forth by National Labor Relations Board. This case had went to court, and Canning basically argued that the board who heard his proposal consisted of people that President Obama had appointed without the approval of the U.S. Senate. The court had ruled that because the Senate had pro forma meetings between December 2011 and January 2012, the U.S. Senate was not in recess, thus Obama was supposed to make recess appointments. The case decision stated, “Because the Senate did not adjourn sine die, it did not enter “the Recess” between the First and Second Sessions of the 112th Congress (National Labor Relations Board v. Noel Canning).”
2)      Alexander Hamilton, a big proponent in the creation of the U.S. Constitution, had wrote Federalist Papers 67, and part of those papers discuss the power the President has on making appointments in the U.S. Senate. Alexander Hamilton wrote, “The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay (Federalist Papers 67).” This merely means that unless in extreme circumstances, the U.S. Senate and the President must come together and come to a consensus about if Obama’s appointment can better the nation or cause havoc internally in the federal government.
3)      According to the U.S. Constitution, “[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments (U.S. Constitution, Article 2, Section 2).” This section of the U.S. Constitution gives President Obama to make appointments that should be approved and discussed by the U.S. Senate to keep check President Obama and his Executive Branch.
4)      According to George Washington, ““Sir. The Office of Judge of the district Court in and for South Carolina District having become vacant; I have appointed you to fill the same, and your Commission therefore [sic] is enclosed. You will observe that the commission which is now transmitted to you is limited to the end of the next Session of the Senate of the United States. This is rendered necessary by the Constitution of the United States, which authorizes the President of the United States to fill up such vacances [sic] as may happen during the recess of the Senate (Letter from George Washington to William Drayton).” George Washington had showed that when he really needed to appoint a person to do a job for him and the Senate was not there to approve of his appointment, he used a recess appointment which is allowed via the U.S. Constitution. When Obama appointed people from December 2011 to January 2012 to a board, the court basically ruled that the U.S. Senate was still meeting during that time period, thus Obama did not really have the authority to make recess appointments without the U.S. Senate’s approval during that period of time.
            The President of the United States is allowed to make recess appointments if and only the U.S. Senate is in recess. The way President Obama had used this concept is despicable because he did it when the U.S. Senate was not in recess. When the National Labor Relations Board v. Noel Canning court case is decided by the U.S. Supreme Court, they should uphold the ruling made by the lower court that basically the President should not have made recess appointments when the U.S. Senate were having some occasional meetings.