By Ben Goad - 01/13/14 01:22 PM EST
Three of President Obama’s recess appointments appeared in jeopardy Monday of being deemed unconstitutional, as the U.S. Supreme Court took up a case that could help define the limits of executive power.
Nearly every justice on the high court questioned the basis of Obama’s 2012 appointments to the National Labor Relations Board, signaling a ruling that could temper presidential authority and bolster the Senate’s hand.
At issue is whether Obama overstepped by making the appointments during a limited “pro-forma” session of the Senate and, further, when exactly presidents can install judges and fill top federal vacancies without the upper chamber’s consent.
“The history is entirely on the Senate’s side, not on your side,” Justice Elena Kagan, herself an Obama nominee, told the administration’s attorney during a rare extended session of oral arguments before the court.
Chief Justice John Roberts also defended the Senate’s role in approving nominees as an important check on presidential power, contending, “They have an absolute right not to confirm nominees that the president submits.”
Most of the justices appeared receptive to arguments that the court should uphold a lower court’s ruling that the nominations were unconstitutional and should be invalidated.
Such a decision, the government’s attorney warned, could deprive Obama and future presidents of authority that was expressly granted by the nation’s framers and has been used since George Washington’s administration.
“That’s the end of the recess appointment power,” Solicitor General Donald B. Verrilli said. “You write it out of the Constitution.”
A ruling that severely restricts the authority would “repudiate the legitimacy of thousands of presidential appointments,” he charged.
Justice Antonin Scalia indicated such a ruling would not, as some have suggested, call into question countless decisions made by judges and agency officials appointed under broader interpretations of presidential recess appointment power.
“You don’t really think we’re going to go back and rip out every [decision made],” he said.
In wading into the dispute, the court is expected for the first time to make clear the bounds of a tool dating back centuries.
Democratic and Republican presidents alike have taken advantage of the Constitution’s Recess Appointments Clause, which empowers commanders in chief “to fill up all Vacancies that may happen during the Recess of the Senate.”
Obama, however, was the first president to appoint nominees when the Senate was in a pro-forma session.
The sessions, in which the upper chamber is briefly called to order by a handful of lawmakers and adjourned every few days, are meant to avoid a formal recess. Critics say they are merely an obstructionist Senate’s way of keeping presidents from filling crucial vacancies.
Obama, in filling the NLRB posts, tested the validity of the pro-forma sessions.
Noel Canning, head of an Oregon-based soft drink bottling and distribution company, who is unhappy with one of the labor board’s subsequent decisions, challenged the appointments as unconstitutional.
In January of last year, the D.C. Circuit Court of Appeals sided with the firm, concluding that the president may only make recess appointments when the Senate is in recess between numbered sessions of Congress, and only then if a vacancy occurred in that same time period.
Under the narrow ruling, more than 300 appointments since 1981 would not have been authorized, according to the nonpartisan Congressional Research Service.
The Obama administration’s case hinges on winning three points, according to Georgetown University Law Center’s Nicholas Quinn Rosenkranz, who is arguing against the government.
First, it must convince the justices that presidents may make appointments during regular recesses and not, as the appeals court ruled, only during the breaks between numbered sessions on Congress.
Next, the court must agree that the appointments may include the filling of vacancies that existed before the recess began, rather than those that occurred during a recess.
Finally, it must conclude that the pro-forma sessions do not count as formal sessions of Congress.
The court’s ruling, expected by June, will likely cement the contours of the recess appointment powers.
Also hanging in the balance are hundreds of NLRB decisions that would have to be revisited if the lower court’s opinion is upheld.
However, attorneys opposing the government’s case downplayed the implications, noting that other legal mechanisms, including a six-year statute of limitations on agency actions, would keep vast numbers of decisions from being thrown into limbo.
Among them was attorney Miguel Estrada, arguing on behalf of Senate Minority Leader Mitch McConnell (R-Ky.), who intervened in the case and was present among the crowd packed into the court for the closely watched arguments.
Estrada brushed aside suggestions that a decision upholding in the D.C. Circuit decision would lead to a “parade of horribles” across the federal bureaucracy.
“There will be no parade, and there will be no horribles,” Estrada told the court.