Gridlock and Executive Power

Abstract

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 justification 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.

This article places the Court’s unanimous holding in Noel Canning in the context of the President’s unilateral action with respect to modifying the Affordable Care Act, Deferred Action immigration policy, as well as the detainee release for Sgt. Bowe Bergdahl, and the “hostilities” in Libya. For each action, in the face of congressional opposition, the President executes at his “lowest ebb,” and warrants the closest scrutiny. In the domestic affairs context, the President can rely only on his “corrective powers,” which allow him to correct the political process, and achieve what a reasonable congress would have done. This novel constitutional philosophy, while defensible in theory, falls apart in practice, with unseen costs to the separation of powers.

Keywords: Executive Power, Separation of Powers, Federalism, Article II, Presidential Power, Noel Canning, Affordable Care Act