How far the Supreme Court justices will go in their ruling on presidential recess appointments remains to be seen, but it appears they were “skeptical” of President Obama’s end-run around the Senate and appointed three members to the National Labor Relations Board in January 2012.
The justices heard 90-minutes of arguments Monday on presidential recess powers, and if their comments to the administration’s solicitor general Donald B. Verrilli were any indication, the justices seem primed to uphold three federal appeals courts rulings that Obama’s appointments were unconstitutional.
“During Monday’s argument at the high court, even justices who have established histories of deferring to the executive branch seemed skeptical of Mr. Obama’s claims,” the Washington Times reported. “Mr. Verrilli, the administration’s attorney, kept getting tripped up by the circumstances of Mr. Obama’s appointments.”
Mr. Verrilli said that whatever the language of the Constitution, Congress and the White House have come to a balance, with senators obstructing far more than they used to, and the president using his recess powers to circumvent them.
“We have, I would submit, a stable equilibrium that has emerged over the course of this country’s history between the two branches,” he said. “What we are advocating for here is the status quo.”
But Justice Stephen G. Breyer said the Founding Fathers didn’t intend for the recess power to be a political tool to help the president avoid Senate approval.
“I can’t find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the president,” he told Mr. Verrilli.
At one point, [Verrilli] urged the court to make its ruling based on decades of practice by presidents of both parties that disregarded the limits on recess appointments only at the end of the year. But Justice Elena Kagan, an Obama nominee, said Mr. Verrilli seemed to contradict that claim by rejecting the Senate’s use of pro forma sessions, which the Senate has repeatedly used to satisfy constitutional requirements.
Justice Kagan said the contradiction could lead her to conclude that “the question of how to define a recess really does belong to the Senate.”
The court could decide to rule narrowly and “simply invalidate Mr. Obama’s appointments by finding he tried to make them when the Senate considered itself in session, not in recess,” the Times noted.
Or, it could “go further and limit the president’s recess powers to the short period after the Senate adjourns at the end of each year.”