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“The presidency dodged a bullet today”


On June 26, 2014, the Supreme Court repealed President Obama’s January 2012 appointments to the National Labor Relations Board, which he made during a 72-hour Senate recess.

Reacting to the decision, Venable partner John Cooney said “The bottom line is that decision is a loss for President Obama, who will pass along diminished powers to all his successors. But given the extraordinary risk the Administration ran by making recess appointments during a three day recess of the Senate, the outcome could have been much, much worse. The holding today is extremely narrow — that a three day recess is not sufficiently long for the president to exercise that power.”

“The presidency dodged a bullet today,” said Cooney.

“All his predecessors had been very careful not to risk the powers of the presidency on separation of powers litigation whenever they didn’t have high assurances that they’d win,” Cooney said.

While Obama will have reduced executive power relative to what he claimed, said Cooney, the office of the presidency has not been harmed much, because the court upheld the president’s right to make appointments when the Senate formally enters recess.

“It could have been a lot worse from their perspective,” he said. “In practical terms, the decisions .?.?. accepted the position on recess appointments that have been gradually worked out” since the 19th century.

Noting the decision’s impact on the NLRB, Cooney said if you thought things were tough for employers at the NLRB before, it’s possible you ain’t seen nothin’ yet.

The Washington Post, McClatchy Washington Bureau, Law360, Christian Science Monitor and Human Resource Executive quoted Cooney in articles on June 26, and the Associated Press quoted him on June 27.