June 24, 2013

High court to hear Obama recess appointments case

The Associated Press

WASHINGTON — The Supreme Court on Monday waded into a major constitutional clash between President Barack Obama and congressional Republicans that could fundamentally limit a president's use of recess appointments to fill high-level administration posts.

The justices will review a federal appeals court ruling that found Obama overstepped his authority when he bypassed the Senate last year to fill three vacancies on the National Labor Relations Board.

The case — to be decided next term — highlights the growing partisanship that has led GOP lawmakers to stall or filibuster several of Obama's choices to head federal agencies that Republicans distrust. That includes nominees to the labor board, which has issued several union-friendly decisions, and the newly formed Consumer Financial Protection Bureau.

The Constitution gives the president the power to make temporary appointments to fill positions that otherwise require confirmation by the Senate, but only when the Senate is in recess.

At issue for the Supreme Court: What constitutes a congressional recess and does it matter when a vacancy occurs?

A three-judge panel of the U.S. Court of Appeals in Washington, D.C., held earlier this year that recess appointments can be made only during the once-a-year break between sessions of Congress. Two judges on the panel also ruled — for the first time — that a vacancy must occur while the Senate is away in order to be filled during the same break.

If the Supreme Court agrees, it would make it nearly impossible for a president to use the recess power, giving the opposition party in Congress the ability to block administration nominees indefinitely.

"Should they uphold the D.C. Circuit, it would be a major blow to presidential power," said Sanford Levinson, a constitutional law professor at the University of Texas. "The rationale for recess appointments in the modern world is much more the ability of the president to staff his administration in the face of Senate hostility."

White House spokesman Jay Carney said Monday, "We are confident that the president's authority to make recess appointments will be upheld by the courts."

Obama has made relatively few recess appointments, 32 in his four-plus years in office, according to the Congressional Research Service. Bush made 171 such appointments and President Bill Clinton filled 139 posts that way in their eight years in office, the research service said.

The Obama administration argues the ruling is a radical departure from precedent that would invalidate hundreds of recess appointments made by presidents of both parties over more than 100 years. Those appointments include "three Cabinet secretaries, five court of appeals judges, 10 district court judges, a director of Central Intelligence, a chairman of the Federal Reserve, numerous members of multi-member boards, and holders of a variety of other critical government posts," Solicitor General Donald Verrilli said in his petition to the Supreme Court.

But all 45 Republicans in the Senate — led by Minority Leader Mitch McConnell, of Kentucky— have filed a friend of the court brief asserting that Obama "made an unprecedented power grab" by making the recess picks.

The nature of the president's actions, during brief Senate breaks that Congress explicitly said were not formal recesses, is driving the current legal controversy.

The case stems from Obama's decision to fill the three NLRB vacancies on Jan. 4, 2012, with Congress on an extended holiday break. At the same time, however, the Senate held brief, pro forma sessions every few days as part of the Republicans' explicit strategy of keeping Obama from filling vacancies through recess appointments. The president also used a recess appointment to install Richard Cordray as head of the financial protection agency, a nomination the GOP had blocked for a year and a half.

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