Supreme Court justices call into question Obama's recess appointment power

Supreme Court justices voiced skepticism Monday regarding President Obama’s recess appointment powers, in the first such case to be considered by the high court.

The court heard arguments Monday in a politically charged dispute over the president’s power to temporarily fill top-level posts when the Senate is in recess. The justices heard more than 90 minutes of arguments in a case that centers on appointments Obama made in 2012 to the National Labor Relations Board.

While the justices repeatedly called those powers into question, Solicitor General Donald Verrilli Jr. warned the court that it would essentially write that power out of the Constitution if it found that those appointments were illegal.

This morning’s oral argument in National Labor Relations Board v. Noel Canning, the challenge to the constitutionality of the president’s recess appointments to the federal labor relations board, checked many of the boxes for high-profile cases. There were long lines and cameras outside. Inside, there was a full press gallery, from which reporters craned their necks to try to see the celebrities (or at least what passes for celebrities in Washington): Senate Minority Leader Mitch McConnell, seated near White House spokesman Jay Carney and White House counsel Kathryn Ruemmler. There were sardonic comments by Justice Scalia, and there was high-quality advocacy. But unlike many high-profile cases, there seemed to be at least some degree of consensus among the Justices, virtually all of whom expressed skepticism of the federal government’s broad defense of the president’s recess appointments power. At the same time, however, a few Justices seemed wary of upending the longstanding practice – by presidents of all ideological stripes – with a ruling that would sharply limit the availability of recess appointments. Whether they can convince their colleagues to reach some sort of middle ground, however, remains unclear.

This can be a BIG deal.

It could be. The Constitution states that the President can appoint “inferior officers” without the consent of the Senate. The problem is that the Constitution doesn’t define what an “inferior officer” is and the Supreme Court precedent on the matter leaves room for interpretation (not sure why FOX is trying to pass this off as an unprecedented case). That said, the Solicitor General shouldn’t be arguing whether or not the President can make recess appointments or what constitutes a recess; he should be arguing that the appointees are inferior officers and therefore their appointment doesn’t require the Senate’s approval whether or not they’re in session. Instead he’s going to end up quibbling over what a Senate recess is. :doh2:

Yep, that is what this case will be about. If the Senate can define when they are in recess or not.

Guess who is going to win this one? :cool:

But it is about time this gets settled.

This is a tough one to call. The questions the Justices have to answer don’t just center around what the extent of the Executive power to make recess appointments is but also how the founders intended for the Senate to function. I do agree that its time to settle this issue so the wailing on both sides stops whenever a President makes recess appointments.

when will the decision be made do you think?

Original intent? Well then the congress is hardly ever in recess anymore compared to the communication and transportation difficulties that had in the 18th and 19th centuries.

Probably June

The real problem here is that the Obama liberals really are—in truth—quite out of step with the rest of the country.

I’m not sure what you are getting at. This case really is a Senate vs Executive Branch case. It is an issue that would be there no matter who happened to be sitting in the White House. Obama caused the immediate court case, but another president could have done the same.

I was reading that recess appointment arguements have been happening since Washington was President. Surprising this issue hasn’t been settled before now. It should be intersting to see what SCOTUS pulls out the hat on this one.

Other than to skirt the Senate, there is little point in making recess appointment considering Senate can reconvene within hours if need be.

It probably won’t make much difference as long as the Democrats control the Senate. I understand the 60-vote threshold is no longer necessary anymore for most judicial appointments.

The Constitution says what it says and I think where SCOTUS is going to struggle is in justifying allowing the Senate to effectively strip the President of his power to make recess appointments by sending someone in to mill around and declare that the recess doesn’t count because there’s a body on the Senate floor. Obviously the founders intended for the Senate to have recesses, but can the Senate basically just decide not to anymore if it has the (intended) effect of eliminating, by fiat, an explicitly named power of the Executive Branch? I do not believe that the founders intended for the Senate to use parliamentary smoke and mirrors, when they don’t like a power granted to another branch of government, to circumvent the Constitutional amendment process. I guess we’ll see what the Supremes say. :smiley:

The question is who gets to decide when the Senate is in Session? The Senate or the president?

That is the way it always was if you read what the constitution says. There is no requirement for the Senate to recess for any length of time in the constitution. Never was.


I have to go out for awhile. Read this far and saw this:

The Senate initiated pro forma sessions not because the majority wanted to — or because the minority filibustered an attempt to adjourn — but because the Speaker of the House of Representatives claimed to prevent the Senate from taking a recess. His actions were likely unconstitutional.

Will need to read the rest of the article. My previous reading by constitutional lawyers have stated that it was not unconstitutional. But then if the senate thought it was unconstitutional; they could have brought it to the Court. They did not.

The second-to-last paragraph explains this:

Moreover, although Judge Griffith was aware that the Senate must pass a resolution to authorize official Senate intervention,39 he appears to have forgotten that resolutions can be debated and therefore filibustered.40 In other words, the Senate majority has powers under Senate Rules that it lacks the ability to defend in court, at least officially through the Office of Senate Legal Counsel. In these instances, the majority’s failure to appear in court says nothing about its wishes. To be sure, the Majority Leader could retain his own counsel, but it is not difficult to imagine why he might dislike the idea of hiring private lawyers to debate Senate procedure in the courts.41 Still, he might provide his views if invited, and the Court should consider soliciting them.

Its worth the read when you have the opportunity.

Interesting read. Here is the part of the Constitution I was referring to:
“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”

US Constitution: Article 1 - The Legislative Branch
Section 5 - Membership, Rules, Journals, Adjournment
So it is not unconstitutional for the House to inform the Senate they cannot adjourn for more than three days.


Its worth the read when you have the opportunity.

Yes, worth the read. I don’t agree with all of it. I think it is very likely that the SCOTUS will simply state that the Senate can define when they are in recess and when they are not; and leave it at that. As another member pointed out: with the filibuster all but gone for appointments, this Senate can give the President the appointees he wants. It may be the same or different for the next Senate.

Elections have consequences.

audio of oral arguments is here:

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