- The Washington Times - Monday, June 24, 2013

The Supreme Court said Monday that it will referee a simmering constitutional crisis between Congress and President Obama, with the justices taking a case on whether the chief executive can use his recess appointment powers to do an end run around a recalcitrant Senate.

With the court preparing this week to close out its 2012-13 session for the summer, the case will be heard after the justices return in October.

A ruling against Mr. Obama could dramatically reduce the president’s powers and give the minority party in the Senate an upper hand in confirmation battles.

But the court also could back Mr. Obama’s interpretation that he can make appointments any time he deems the Senate “unavailable” for consultation on nominees.

It also could rule more narrowly, finding that although the president has broad recess powers, he cannot use them while the Senate is meeting in pro forma sessions as a way to deny him that authority.

“We are confident that the president’s authority to make recess appointments will be upheld by the courts,” White House press secretary Jay Carney told reporters after the court said it will take the case.

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Designed as a way for the president to act when senators were away from Washington and out of contact for long periods during the early days of the republic, the recess powers in recent years have become a way for the president to do an end run around a gridlocked Senate.

This case gives the court a chance to reset that playing field.

The justices appeared particularly interested in the informal three-day rule that the Senate has been using in recent years to deny presidents his recess powers. Under that rule, the Senate convened for pro forma sessions every few days, arguing that made the chamber “in session” for purposes of preventing recess appointments.

“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.

It was during one of those periods of pro forma sessions every third day when Mr. Obama made the appointments under dispute early last year.

Mr. Obama appointed three people to the National Labor Relations Board and picked another to head the Consumer Financial Protection Bureau. Even though the Senate was meeting, the pro forma sessions meant that just a single lawmaker was on the chamber floor and most others were back in their home states. Mr. Obama said that meant lawmakers weren’t available for the purpose of giving advice and consent.

Senate Democrats pioneered the three-day pro forma method of halting recess appointments when George W. Bush was president — and when Mr. Obama was in the Senate.

After Mr. Obama won the White House, the roles reversed and Republicans forced the Senate to into session every three days to deny the president his recess powers.

Fed up with the blockade, Mr. Obama made the appointments a day after the Senate convened in pro forma session last year. He said that the Senate wasn’t really in session because most members were out of town and “unavailable” to act on his nominees.

Republicans said that move upended years of an uneasy agreement between Congress and the White House.

A bottling company, backed by the U.S. Chamber of Commerce, sued to overturn an NLRB ruling made with the questionably constituted board, and Republican senators joined in that lawsuit.

Two appeals courts ruled this year against Mr. Obama, saying Congress has the power to determine scope of its own recesses.

“Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers,” the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said in its opinion.

The Constitution says the Senate is to give its consent to presidential nominations, but anticipating short legislative sessions and at a time when it could take weeks for lawmakers to return to Washington, the founders gave the chief executive the “power to fill up all vacancies that may happen during the recess of the Senate.”

While both appeals courts said “the recess” refers to the period after Congress adjourns for the year, one of the two courts went further, saying it also seems the founders intended for the president to use those powers only for positions that become vacant during that recess, not ongoing vacancies such as the ones on the labor relations and consumer protection boards.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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