- The Washington Times - Sunday, January 12, 2014

For the Supreme Court, whether President Obama’s recess appointments were legal could well rest on whether the justices side with Presidents Washington, Jefferson and Madison, or whether they stick with the 40 men who followed the founders.

The case the court will hear Monday has all the makings of a legal thriller — Congress battling the president, with the Supreme Court, sitting for its first oral argument of 2014, called to settle the spat.

It’s also what lawyers call a “case of first impression,” meaning the justices have never ruled on this particular question, so there is no firm precedent to guide them.

SEE ALSO: NO BUFFER: Free speech, abortion rights to clash at Supreme Court this week

Making the issue all the more delicious for Washington are the accusations of power grabs and political hypocrisy: Mr. Obama, who is claiming broad recess powers, objected to those very same powers when he was in the Senate and Democrats used the same questionable tactics in 2007 and 2008 to block President George W. Bush’s appointments.

“Three federal circuit courts of appeals have already ruled that the president violated the Constitution when he made so-called recess appointments while the Senate was in session, and now the U.S. Supreme Court has an opportunity to guard against the dangers of an imperial presidency,” said Sen. Lamar Alexander of Tennessee, one of the Republicans who have pushed back the hardest against Mr. Obama.

The president’s defenders say a ruling against Mr. Obama would be a recipe for gridlock on Capitol Hill, with senators free to delay or block a president’s nominees and the chief executive with no way to circumvent them.

“If the Supreme Court rules against this power, important posts would remain unfilled for months at a time, adding to an already historic level of government dysfunction,” said David Earley, a lawyer at the Brennan Center for Justice who just completed an analysis of the issues at stake.

The court has a few questions to answer: First, what vacancies can be filled by recess appointments? Second, what constitutes a recess for the purposes of using that power? And third, is it Congress or the president who determines when the Senate is meeting and when it is in recess?

When the founders wrote the Constitution, they gave the president the power to nominate top officials but granted the Senate the duty to approve them. Accounting for long travel and expecting Congress to be in session only a few weeks or months of the year, the founders created a special exception — the recess appointment power — to let the president fill jobs, temporarily, when Congress wasn’t in town.

Now, with advancements in travel making it easy to return to Washington from anywhere in the country within a day, and with Congress almost always in session, the recess appointment power has become more of a way to bypass a reluctant Congress and fill key posts over the objections of senators.

The specific case before the court is Noel Canning v. National Labor Relations Board. Noel Canning, a family-run bottling company, is suing to try to stop an adverse ruling from the NLRB, saying the board didn’t have a true quorum because some of its five members were appointed illegally by Mr. Obama.

Mr. Obama named three members to the board in January 2012, just days after the 112th Congress began its second yearlong session. But the Senate was meeting every three days in pro forma sessions specifically designed to fulfill the requirement that the chamber wasn’t in recess, thus trying to prevent the recess powers from taking effect.

The president ignored the Senate’s meetings. He argued that most lawmakers were out of town and the Senate wasn’t functionally meeting and couldn’t fulfill its duty to confirm nominees, so he could use his recess powers.

A federal court of appeals sided with Noel Canning and issued a stunningly broad ruling that said Mr. Obama and presidents for nearly the past two centuries have misread the Constitution.

Under the appeals court’s ruling, the president can use his recess powers only after Congress has adjourned for the year, and then can use them to make appointments only to positions that become vacant during that break.

If the ruling is upheld, it would invalidate nearly all appointments that have been made.

Michael McConnell, a former federal appeals court judge who is now director of the Stanford Constitutional Law Center, said the case is fascinating because the Constitution is fairly clear about when recess powers can be used, but presidents have circumvented those limits for nearly two centuries.

“I think the text is almost clear, and the early practice confirms that — the fact that the vacancy has to occur during the recess. The interesting thing there is the contrary practice began under Monroe. That’s been a long time,” Mr. McConnell said. “It’s the first instance I can think of where long-standing practice has been in disregard of pretty plain text corroborated by original practice.”

That means to oppose Mr. Obama, the justices would have to overturn more than a century of practice.

Republican senators, led by Minority Leader Mitch McConnell of Kentucky, have joined the U.S. Chamber of Commerce and a host of political scientists, historians and law professors in arguing against Mr. Obama.

Liberal legal groups and unions have filed briefs supporting the president.

Writing at Slate.com, Eric Posner, a law professor at the University of Chicago, said the justices should forget about wading through the history of what the founders intended or what the early generations did.

He said Washington, Madison and others couldn’t have foreseen the political party system, the growth of the government or the chances for obstruction in the Senate, nor could they have predicted the communication and transportation advances that effectively have shrunk the country.

“Is the right way to resolve a 21st-century controversy to place the minutiae of the 1790s under a magnifying glass and ignore everything that came later? Whether you come down for or against Obama, surely the answer is no,” Mr. Posner wrote.

Legal analysts said there are several other options for the justices should they choose not to want to settle the big historical questions.

One option would be to simply rule that pro forma sessions are legitimate meetings of the Senate for purposes of denying the president his recess powers.

Another option would be to find that the dispute constitutes a “political question,” best left to the two political branches of government — Congress and the president — and ultimately to voters.

Victor K. Williams, a clinical assistant law professor at Catholic University, says that if the court looks at Mr. Obama’s actions, it also would have to delve into the Senate’s obstruction.

“Judicial oversight of recess appointments is a blatant conflict of interest. The court should stay out of this political, partisan fight. Best just leave it to the elected political branches to fight out, and the ideological political interest groups to fight out,” Mr. Williams said at a Cato Institute preview of the Noel Canning case last week.

Sign up for Daily Newsletters

Manage Newsletters

Copyright © 2019 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.


Click to Read More and View Comments

Click to Hide