- The Washington Times - Monday, January 13, 2014

Supreme Court justices were skeptical Monday of President Obama’s claim of almost unlimited appointment powers, saying he appeared to be trampling on the founders’ vision when he tried to do an end-run around the Senate in 2012.

While the justices appeared to struggle with how far to go in their ruling, most of them, including Mr. Obama’s nominees to the court, took dim views of the president’s move to name three members to the National Labor Relations Board in January 2012.

If they ruled narrowly, they could simply invalidate Mr. Obama’s appointments by finding he tried to make them when the Senate considered itself in session, not in recess. But the court also could go further and limit the president’s recess powers to the short period after the Senate adjourns at the end of each year.

In 90 minutes of oral arguments, the justices fought over whether the word “happen” means something different from what it did in the late 1700s, debated the separation of powers between the branches, and sparred with Donald B. Verrilli Jr., the Obama administration’s solicitor general, about the president’s expansive claims.

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.”

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He acknowledged that the recess appointment power has moved beyond its original intent and has now become a “safety valve” for the president.

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.

The case, the first oral argument of 2014, attracted major interest. Senate Minority Leader Mitch McConnell, Kentucky Republican, attended Monday’s argument and said the justices were “rightly skeptical” of Mr. Obama’s claims.

Also in attendance were the White House’s chief attorney, Kathryn Ruemmler, and press secretary Jay Carney, who said he believes the court will side with Mr. Obama.

“We’re confident that the courts will uphold the president’s authority and look forward to resolution of this matter,” Mr. Carney told reporters at the White House later.

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Under the Constitution, the president has the duty to nominate key officials, but the Senate is given the power to confirm them. Recognizing that Congress, particularly in its early days, was sitting only a few weeks or months a year, the founders also created an emergency clause saying the president “shall have the power to fill up all vacancies that may happen during the recess of the Senate.”

In recent years, with Congress meeting almost continuously, the recess appointment power instead has become a tool that presidents of both parties have used to circumvent Congress when senators have tried to obstruct his nominations.

In 2012, frustrated that the Senate wouldn’t act on his nominees to the National Labor Relations Board, which would have meant the board lost a quorum and couldn’t act, Mr. Obama did an end run.

The Senate was meeting every few days in “pro forma” sessions, specifically to deny Mr. Obama his recess powers, but the president said no business was conducted at those sessions, so lawmakers weren’t available to provide “advice and consent” to his nominees, so they were in effect in recess. Mr. Obama made three recess appointments to the NLRB.

Noel Canning, a family-run bottling company, combined with the U.S. Chamber of Commerce to sue, arguing that decisions made by the NLRB were invalid because those three board members weren’t properly installed.

The U.S. Circuit Court of Appeals for the District of Columbia ruled in favor of the challengers, but went further and said the Constitution appears to limit the president’s powers only to the end-of-year break.

To prevail in the case, Mr. Obama must convince the court of three main points: that the Constitution doesn’t limit recess appointments only to vacancies that arise during the end-of-year break; that it doesn’t require that the appointments be made only in that same break; and that the president can determine whether the Senate is truly in session, regardless of what the Senate believes.

The appointment process has become a major political issue in recent years as each party has tried to deny opposing presidents their picks.

Last year, Senate Democrats used a shortcut to change the chamber’s rules and make it easier to overcome filibusters of nominees. Senate Majority Leader Harry Reid, Nevada Democrat, immediately pushed through several high-profile nominees through the new process, including three to the very same D.C. appeals court that ruled against Mr. Obama’s claim of recess powers.

Republicans said Mr. Reid was exacting payback against the court for its ruling.

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.

Mr. Verrilli, the administration’s attorney, kept getting tripped up by the circumstances of Mr. Obama’s appointments.

At one point, he 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.”

Mr. Verrilli countered that that could mean the end of the recess appointment power altogether.

“That’s the end of the recess appointment power,” he said. “You write it out of the Constitution, if you look at it that way.”

Ben Wolfgang contributed to this report.

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

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