…He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. – Article II, Section 2 of the United States Constitution

TheHill.com reports that

Nothing less than the boundaries of executive power are at stake Monday as the Supreme Court considers whether President Obama violated the Constitution during his first term.

Oral arguments slated for Monday will center on a trio of recess appointments to the National Labor Relations Board (NLRB) that were deemed unconstitutional by lower courts.

If they uphold the decision, experts say the justices could endanger hundreds of NLRB decisions.

Even more significant are the ramifications for future presidents, with the court poised either to bolster or blunt the chief executive’s appointment powers.

“Rulings like this have implications that last for centuries,” said Michael Lotito, an employment and labor attorney and co-chairman of Littler Mendelson’s Workplace Policy Institute.

Presidents have for decades used recess appointment powers when the Senate is away to install judges and fill top federal vacancies that ordinarily would be subject to confirmation proceedings.

But with the disputed NLRB appointments, Obama became the first president to appoint nominees when the Senate was in a “pro-forma” session, when the upper chamber is briefly called to order and adjourned every few days.

The sessions are intended to prevent recess appointments, and usually only a handful of senators are present for them. In filling the NLRB posts, the Obama administration claims that the Senate is generally not available to conduct business during the sessions, so the president’s recess appointment power is in effect.

“The sham pro-forma sessions are nothing more than that,” said Catholic University law professor Victor Williams, who filed a brief backing the government’s position.

The impetus for recess appointments has faded now that Senate Democrats have changed their chamber’s rules to allow for a simple majority vote on presidential nominees. Nevertheless, the case could stunt Obama’s and future presidents’ authority when it comes to staffing administrations.

The case was brought by Noel Canning, an Oregon-based soft drink bottling and distribution company that challenged the appointments as unconstitutional.

In January of last year, the D.C. Circuit Court of Appeals agreed.

The appellate court ruling under now review at the Supreme Court found a narrow window for the president to make recess appointments. Under its decision, the president can only make such appointments when the Senate is in recess between sessions of Congress, and only if a vacancy occurred in that same time period.

That goes well against protocol adopted by past Democratic and Republican presidents. A Congressional Service Research report found 329 such appointments since 1981 that would not meet that criteria and would be ruled void if the appeals court decision was law.

Some see the fight against the labor board as a broader effort in which opponents have sought to stymie the Obama administration’s rules and regulations.

“I think the battle against the NLRB over the last few years has been a proxy war about the proper role and scope of government,” said Wilma Liebman, who served as chairwoman of the NLRB from January 2009 to August 2011.

Yesterday, on Fox News, Senator Ted Cruz said,

The pattern we’ve seen under President Obama, disregarding the law, is really one of the most troubling aspects of this presidency,” he said. “When he disagrees with the law…he simply refuses to comply with it.

He is exactly right. For instance, he had his Attorney General, Eric Holder, announce the other day that the Administration would not recognize the will of voters in Utah concerning their banning of Gay Marriage in that state. An activist judge had previously struck down the vote, only for the judge’s decision to be “stayed” by the Supreme Court.

An out-of-control Executive Branch is the antithesis of what the Founding Fathers had in mind when they created our Constitutional Republic. Those wise men created a government unlike any other on God’s green Earth, devising a government whose system of checks and balances would provide a natural defense against a megalomaniac assuming dictatorial powers and bypassing the Constritution, in the manner in which the current occupant of 1600 Pennsylvania Avenue most certainly has.

Just as we are facing today, our founders knew that we would face challenges as a nation.

Once they had won their Freedom, and formed their new nation, our Founding Fathers set upon the task of putting quill to paper, creating a Constitution, stating for all the world to know, the rights, given to them by their Creator, which they would put in place as the guidelines upon which they would carry this new nation to its destiny.

Outside Independence Hall, when the Constitutional Convention of 1787 ended, Mrs. Powel of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” With no hesitation whatsoever, Franklin responded, “A republic, if you can keep it.”

A ruling today against Obama’s usurpation of Executive Powers will be a great step in ensuring that we keep our Constitutional Republic.

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. – James Madison

Until He Comes,

KJ