Jan. 13 (Bloomberg) -- U.S. Supreme Court justices suggested they may curb the president’s power to make temporary appointments without Senate approval, as the court took up a constitutional standoff between the White House and congressional Republicans.
Hearing arguments today in Washington, justices across the ideological spectrum questioned whether President Barack Obama legally appointed three members of the National Labor Relations Board in January 2012. The case is the court’s first look at a constitutional provision that lets the president make temporary appointments to high-level posts during Senate recesses.
Several justices indicated they accepted the argument, made jointly by a company facing NLRB sanctions and Senate Republicans, that the chamber wasn’t in a recess when Obama made the appointments.
“It really is the Senate’s job to determine whether they’re in recess or whether they’re not,” said Justice Elena Kagan, one of Obama’s two appointees to the high court. Justice Anthony Kennedy later made a similar point.
At stake is the scope of a power the Obama administration says has been used thousands of times since the country’s founding. A broad ruling against the president might all but nullify the recess appointment power.
The case also may cast doubt on about 1,000 decisions and orders issued by the NLRB during the disputed period. Those include one before the justices involving soft-drink bottler Noel Canning Corp. of Yakima, Washington.
The case stems from a 2011-2012 political showdown. Facing the prospect that Obama would make appointments during Congress’s holiday break, House and Senate Republicans refused to formally adjourn. The Senate held “pro forma” sessions that sometimes involved a single senator’s brief appearance in the chamber about every third day.
Obama, saying lawmakers were in recess, made the appointments of Sharon Block, Terence Flynn and Richard Griffin on Jan. 4, 2012. On that same day, the president also named Richard Cordray as a recess appointee to head the Consumer Financial Protection Bureau.
The immediate stakes in the case have shrunk. A few weeks after the court accepted the case in June, Senate Republicans and Democrats reached an agreement that cleared the way for confirmation of two new NLRB nominees, plus Cordray. Senate Democrats later pushed through a change in the body’s rules so that a simple majority will be able to confirm most presidential nominees.
The case gives the high court a menu of options for ruling against the administration. The justices could focus on the pro-forma sessions and conclude that no recess had occurred.
They could also adopt the reasoning of a federal appeals court, which ruled 3-0 that the recess-appointment power applies only after a year-long congressional session ends and before the next one begins, and not during breaks within a session.
Two of the appellate judges also said that valid appointments could be made only when the vacancy itself occurred while the Senate was adjourned.
U.S. Solicitor General Donald Verrilli told the justices today that the appeals court reasoning “would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington.”
Justice Antonin Scalia asked whether that historical practice could trump the words of the Constitution. When Verrilli said that “practice has to prevail,” Scalia bristled.
“So if you ignore the Constitution often enough, its meaning changes?” Scalia asked.
The Constitution says the president “shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
Several justices wondered aloud how the court could apply a provision that was designed to allow emergency appointments when the Senate couldn’t quickly convene.
“This is not the horse-and-buggy era anymore,” Kagan said. “There’s no such thing as congressional absence anymore. And that makes me wonder whether we’re dealing here with what’s essentially an historic relic, something whose original purpose has disappeared.”
Noel Canning’s lawyer, Noel Francisco, told the justices that the administration was making an “end run” around the constitutional requirement that he get the Senate’s “advice and consent” on appointments.
Chief Justice John Roberts suggested agreement, saying he read the Constitution as giving the Senate a robust role.
“You spoke of the intransigence of the Senate,” he told Verrilli. “Well, they have an absolute right not to confirm nominees that the president submits.”
Miguel Estrada, representing 45 senators, including Republican leader Mitch McConnell of Kentucky, told the justices that the constitutional framers created a “joint power of appointment.” When the Senate won’t confirm a nominee, Estrada said, the president should propose an acceptable alternative.
“It’s always possible for the president to come up with another nominee who is even more qualified and acceptable to the Senate,” he said.
Recess appointees can remain in office through the two-year congressional term that follows the one during which they were appointed.
The case, which the court will resolve by early July, is National Labor Relations Board v. Canning, 12-1281.
To contact the reporter on this story: Greg Stohr in Washington at firstname.lastname@example.org