In NLRB v. Noel Canning, the Solicitor General argued that the President’s 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—congressional intransigence does not allow the president to flex his inherent Article II powers, as a means to release a safety valve of pressure in Congress.
My new article, “Congressional Intransigence and Executive Power,” places the Court’s unanimous holding in Noel Canning in the context of the President’s unilateral action with respect to the Affordable Care Act, Deferred Action immigration policy, as well as the prisoner trade for Sgt. Bowe Bergdahl, and the “hostilities” in Libya. For each decisive inaction, in the face of with 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 inherent “policy powers,” which reside below Justice Jackson’s third Youngstown tier, in the fourth zone of “insight.”
I welcome all feedback and comments on this article, which is increasingly timely in light of recent developments about the proposed lawsuit challenging the President’s suspension of the ACA (which I did not address in this article).