- Professor Josh Blackman, South Texas Law
- Professor Stephen Vladek, American Law
The recent indictment of Texas Governor Rick Perry has garnered huge press attention. In an unusual alignment, commentators from both the left and the right have been highly critical of the indictment, with the New York Times editorial board calling it “the product of an overzealous prosecution.” But condemnation of the indictment has not been perfectly unanimous, and a few commentators have now come out in support of the indictment. We examined all the details on a Teleforum conference call.
At bottom, in Kuretski v. Commissioner, presidential power is at stake. Judges of the U.S. Tax Court (26 USC 7443(f)), were arguably characterized by the U.S. Supreme Court, in Freytag v. Commissioner, as exercising a portion of the judicial power of the United States. Recently, however, the D.C. Circuit Court of Appeals disagreed when it found that the Tax Court exercises only executive power. What are the implications of the D.C. Circuit Court’s opinion on the president’s removal power? Has the D.C. Circuit misread Freytag, or faithfully applied it?
In his new book, Is Administrative Law Unlawful?, Professor Philip Hamburger answers the provocative question posed in his title in the affirmative. Rather than accepting administrative law as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative and traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the United States Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Professor Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the U.S. Constitution — and constitutions in general — were designed to prevent.
Professor Hamburger joined us on a Teleforum conference call to discuss his new book, with additional commentary from Adam White. Mr. White’s recent review of the book for the Wall Street Journal is available here.
On June 26, 2014, the Supreme Court issued its decision in National Labor Relations Board v. Noel Canning. This case presented three questions arising from President Obama’s attempt to make three recess appointments to the National Labor Relations Board or NLRB. First, it asked whether the President can exercise the recess appointment power during a temporary recess that occurs while the Senate is still in session, or is instead limited to recesses between enumerated sessions. Second, the case asked whether the President may exercise the recess appointment power to fill any vacancy that exists during a recess--including vacancies that arose before the recess occurred--or whether that power is limited to vacancies that arise during the recess. Finally, the case asked whether the Senate is in continuous recess if, though effectively out of town, it continues to convene every three days in brief pro forma sessions.
In a 9-0 decision, the Court found President Obama’s attempted recess appointments to the National Labor Relations Board invalid. In his opinion for the Court, Justice Breyer ruled that the Recess Appointments Clause empowers the President to fill any existing vacancy during any recess, whether it be intra-session or intersession, of sufficient length. He also held that the phrase 'vacancies that may happen during the recess of the Senate,' applies both to vacancies that first arise during a recess and to vacancies that arise before a recess but continue to exist during the recess. Finally, he concluded that because the Senate was in session during its pro forma sessions, the recess during which the President made the appointments was only 3 days, and therefore too short to trigger the President’s recess appointment authority. The appointments were therefore invalid. Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed an opinion concurring in the judgment, which the Chief Justice and Justices Thomas and Alito joined. The opinion of the D.C. Circuit, which held that the recess appointments fell outside the scope of the Clause, was affirmed.
To discuss the case, we have Noel J. Francisco, Partner, Jones Day; Prof. Kristin E. Hickman, Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute, University of Minnesota Law School; and Prof. Michael B. Rappaport, Hugh and Hazel Darling Foundation Professor of Law, and Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law.