News Column

Obama Recess Appointments to Get Supreme Court Scrutiny

June 24, 2013

The Supreme Court said Monday that it will take up the case of President Obama's controversial recess appointments, with the justices agreeing to weigh in on what's become a simmering constitutional crisis.

And the justices appear to be particularly interested in whether Congress can use the strategy pioneered by Democrats and continued by Republicans -- but which Mr. Obama flouted -- of meeting every three days in pro forma sessions to deny the president his powers.

"In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: Whether the president's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions," the justices said in their order taking the case.

Oral arguments would be held in the next session, when the court reconvenes after its summer vacation.

Two federal appeals courts this year have ruled that Mr. Obama overstepped his constitutional powers with several recess appointments to the National Labor Relations Board, and both the White House and its opponents said they wanted to see the Supreme Court take the case and settle the matter.

At stake is decades of practice by presidents of both parties, who have used their recess powers to appoint judges and executive branch officials as a work-around when the Senate is blocking them.

But Mr. Obama pushed the limits early last year when he moved to appoint members to the National Labor Relations Board, even though the Senate -- prodded by the House -- was meeting in pro forma sessions every few days specifically to deny him the ability to use his recess powers.

Backed by the U.S. Chamber of Commerce, a bottling company sued the NLRB after the newly constituted board made an adverse decision. Senate Republicans joined in that suit, arguing that the courts needed to step in and check the president's powers.

The White House argued that since the Senate was only meeting in pro forma sessions, most lawmakers were out of town and so they were not really available to give "advice and consent" on Mr. Obama's nominees -- which the administration said was the same as being in recess.

But the U.S. Court of Appeals for the D.C. Circuit ruled that the president cannot claim those powers for itself.

"Allowing the president to define the scope of his own appointments power would eviscerate the Constitution's separation of powers," the judges said in their opinion early this year.

Another federal appeals court has since ruled the same way, invalidating another decision involving an Obama recess appointment to the NLRB.

Both appeals courts ruled that the president can only use recess powers after Congress has adjourned a session permanently, which during modern times usually means only after Congress goes home for the end of the year. That would rule out the weekend and holiday breaks that lawmakers regularly take -- sometimes for more than a month.

But the two courts reached their decisions based on different readings of the Constitution, which signals how much room there is for differing interpretations in this area of constitutional law.

Indeed, the D.C. appeals court ruled that not only can the president only make recess appointments after Congress has fully adjourned, but those appointments can only come on positions that became vacant during that recess.

That holding would severely limit the president's powers.


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Source: Copyright Washington Times (DC) 2013

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