Three Democratic Senators explain why and how the President can rely on his executive power to enact immigration reform if Congress will not:

“We’re at the end of the line,” Sen. Robert Menendez (D-N.J.) said Thursday during a press briefing in the Capitol. “We’re not bluffing by setting a legislative deadline for them to act.

“Their first job is to govern,” Menendez added, “and in the absence of governing, then you see executive actions.”

Sen. Dick Durbin (D-Ill.) piled on. Noting that a year has passed since the Senate passed a sweeping immigration reform bill with broad bipartisan support, he urged House Speaker John Boehner (R-Ohio) to bring a similar bill to the floor.

“I don’t know how much more time he thinks he needs, but I hope that Speaker Boehner will speak up today,” Durbin said. “And if he does not, the president will borrow the power that is needed to solve the problems of immigration.”

…

“If they don’t bring any bill to the floor, the president has no choice — on a humanitarian basis and on a policy basis — to act where he can on his own,” Schumer added.
“If they don’t bring any bill to the floor, the president has no choice — on a humanitarian basis and on a policy basis — to act where he can on his own,” Schumer added.

So when Congress doesn’t pass the laws the President wants, the President “has no choice” and can “borrow the power” to “act on his own” “on a humanitarian basis and a policy basis.”

Didn’t the Court just say in Noel Canning that executive action can’t be justified by congressional intransigence alone? When Congress won’t pass laws, then that’s its. There is no recess appointment power to make laws.

And, as Scalia added, the recess appointment power is not a “safety valve” for “intransigence.”

The majority also says that “political opposition in the Senate would not qualify as an unusual circumstance.” Ibid. So if the Senate should refuse to confirm a nominee whom the President considers highly qualified; or even if it should refuse to confirm any nominee for an office, thinking the office better left vacant for the time being; the President’s power would not be triggered during a 4-to-9-day break, no matter how “urgent” the President’s perceived need for the officer’s assistance. (The majority protests that this “should go without saying—except that JUSTICE SCALIA compels us to say it,” ibid., seemingly forgetting that the appointments at issue in this very case were justified on those grounds and that the Solicitor General has asked us to view the recess-appointment power as a “safety valve” against Senatorial “intransigence.”