The suggestion by U.S. Supreme Court justices that they may end the president’s power to make temporary appointments without Senate approval would end an archaic law with little validity in today's world, CNN legal analyst Paul Callan says.
"It really was put into place by the Founding Fathers to deal with a situation when Congress just wasn't available and couldn't weigh in on an issue so they had this special exception," Callan told "The Steve Malzberg Show" on Newsmax TV.
"And when Congress is closed for three for four days or a week, that doesn't sound like the situation the Founding Fathers had in mind."
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The court, hearing arguments on Thursday in a constitutional standoff between the White House and Republican congressmen, questioned whether President Barack Obama had the legally appointed several members of the National Labor Relations Board two years ago.
Callan, a former NYC homicide prosecutor and criminal defense attorney, said justices from various judicial viewpoints showed skepticism about the presidential power.
"It wasn't just people who are normally thought to be the conservatives on the court. A lot of the justices asked hard questions here," Callan said.
"This provision about interim appointments came into the Constitution back at a time when people traveled by horseback and Congress was out of session for very long periods of time.
"So the Founding Fathers built in this provision that the president could act when Congress was adjourned or in recess. Of course in modern days, these recesses are very short so the Obama administration took advantage of a very brief adjournment … to slip in NLRB-appointees who were being blocked by the Senate."
Callan said Obama is not alone in using the provision.
"President Bush [and] Republican presidents have done the same thing. It's sort of the modern age being used to amend the Constitution so that presidents can get around the power of Congress," he said.
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