- The Washington Times - Tuesday, May 28, 2013

Senate Republicans on Tuesday urged the Supreme Court to hear the case involving President Obama’s recess appointments, saying the administration is trying “to confuse and mislead” the justices by downplaying the weighty constitutional issues at stake

Led by Minority Leader Mitch McConnell, all 45 Senate Republicans signed onto an amicus brief asking the court to settle what has become a burgeoning constitutional crisis over who gets to decide when the Senate is in session and when it is in recess — which is when presidents are allowed to make recess appointments.

“Indeed, the stakes for the separation of powers are much greater than the executive lets on,” the Republicans wrote in their brief.

Most nominations are required to be confirmed by the Senate, but the president can make temporary appointments during what the Constitution calls “the recess of the Senate.”

Mr. Obama tested the limits of that power last year when he named three members to the National Labor Relations Board, even though the Senate was meeting in pro forma session every few days specifically to avoid entering into a constitutional recess.

A federal appeals court this year ruled the three NLRB appointments were invalid, arguing that Mr. Obama can only use his powers at an end-of-the-year recess, not the more common holiday breaks presidents have used.

Last week, a second appeals court invalidated a different NLRB recess appointment on much the same grounds.

The Obama administration asked the Supreme Court to take the first case, saying the lower court would invalidate decades of practice from presidents of both parties. Mr. Obama said the key test is whether the Senate is capable of doing business, not whether it is technically meeting.

During the period in question, the Republican-controlled House was meeting every few days. Under the Constitution, if one chamber is meeting, the other has to meet regularly, too — which meant the Senate, controlled by Democrats, also had to come into session regularly, though by agreement they didn’t do much business.

“The Senate is no more available to provide its advice and consent during an intra-session recess, and the president is no less in need of officers to fulfill his constitutional obligation, than during an inter-session recess,” the administration’s lawyers wrote.

Mr. McConnell and Senate Republicans countered that the real issue is whether the president can ignore Congress even when lawmakers say they are in session.

A family-owned bottling company, Noel Canning, sued to overturn the NLRB appointments, in a case aided by the U.S. Chamber of Commerce.

Senate Republicans joined the lawsuit with the amicus brief.

Their case is being argued by Miguel Estrada, a prominent lawyer who himself was denied a senior judgeship when Democrats filibustered his nomination by President George W. Bush.

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