The Boundaries of Executive Power
In this tele-town hall, Dr. John C. Eastman, Founding Director of the Claremont Institute's Center for Constitutional Jurisprudence, is joined by John Elwood to discuss the limits of the president’s appointment authority and the impact of the 2016 election of the future of the judiciary. Mr. Elwood is a partner at Vinson & Elkins, specializing in appellate litigation and administrative law. He also teaches the University of Virginia School of Law’s Supreme Court litigation clinic.
Dr. Eastman and his guest first examine National Labor Relations Board (NLRB) v. SW General. The question before the Court is when the president may appoint someone to an executive branch position in an acting capacity. In 1998 Congress passed the Federal Vacancies Reform Act to curb the president’s use of temporary appointments which evade the Senate’s confirmation process. President Obama creatively sidestepped these limitations by nominating an individual to the position of NLRB general counsel and then appointing the same individual to fill the vacancy in an acting capacity.
They also discuss the results of the 2016 election. During the campaign, Donald Trump put forward a list of originalist judges he would consider appointing to the bench. With Trump capturing the presidency and Republicans retaining control of the Senate, this election promises to have a major impact on the courts.
Dr. Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University Fowler School of Law. He served as a law clerk with Justice Clarence Thomas in 1996-97. Dr. Eastman currently serves as the chairman for the National Organization for Marriage.