U.S.

Supreme Court casts skeptical eye on Obama's appointment power

Court considers move that would curb Obama's ability to use recess appointments to bypass a gridlocked Congress

People walk past the Supreme Court in Washington, D.C.
Maddie Meyer/The Washington Post via Getty Images

The U.S. Supreme Court signaled a willingness on Monday to rein in President Barack Obama's power to temporarily fill senior government posts without the Senate's approval, a move that would curb his ability to bypass a gridlocked Congress

The court is writing on a blank slate as it considers for the first time the Constitution's recess appointments clause. That clause allows the president to fill vacancies temporarily, but only when the Senate is in recess.

Article II, section 2 of Constitution states, "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."

The legal battle is the outgrowth of partisan rancor over presidential appointees that has characterized Washington over the past 20 years, and especially since President Barack Obama took office in 2009.

Recess appointments have divided Democrats and Republicans, with views changing depending on which party holds the White House. But during more than 90 minutes of arguments Monday about so-called recess appointments Obama made to the National Labor Relations Board (NLRB) in 2012, the Obama administration was hard pressed to find support for its stand in favor of them from justices named by Republicans and Democrats alike.

The arguments before the court on Monday dealt with a case in which soft drink bottler Noel Canning Corp is challenging an NLRB ruling against it. The company argues the ruling was invalid because some of the NLRB board members on the panel that issued it were recess appointees picked by Obama.

The case has become a much broader fight over the president's ability to make appointments while the Senate is in recess and what exactly constitutes a recess.

Obama used his recess appointment power to name three members to the five-member NLRB in January 2012. Democratic and Republican presidents have made many such temporary appointments — valid for up to two years — of officials who otherwise would have had difficulty winning Senate confirmation.

Underscoring the political stakes involved in the court case, Senate Republican Leader Mitch McConnell, who has sought to stymie Obama's legislative agenda, attended the arguments.

Under McConnell, Republicans had used Senate rules to frustrate Obama's attempts to fill various positions, including vacancies at the NLRB, up until a Senate rule change was pushed through by Democrats late last year.

"The president made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even trying to obtain its advice and consent," McConnell said in a statement afterward.

White House Counsel Kathryn Ruemmler and White House spokesman Jay Carney were also present. Carney told reporters the administration was "confident that the president's authority to make recess appointments will be upheld by the courts."

The court is expected to issue a ruling in the case by June that has the potential to shift the balance of power between the White House and the Senate. While both are now controlled by Democrats, Republicans hope to win control of the Senate in congressional mid-term elections in November.

Political battle

The administration says it is following the long-established interpretation of the recess appointments clause of the U.S. Constitution, dating back to President George Washington.

Noel Canning and its backers say the administration has ignored the original intent of the Constitution's drafters, who included the recess appointments clause to ensure the government could continue to function when the Senate was in recess for months at a time and senators would travel to Washington on horseback.

The court could decide the case in various ways, but even a narrow ruling against the government could be bad news for Obama in the last two years of his term.

If Republicans win control of the Senate in November, they would be able to reject Obama appointments outright and would have more sway over when to declare recesses.

Republicans and business groups like the U.S. Chamber of Commerce have long been eager to prevent Democratic presidents from appointing pro-labor members to the NLRB, an independent federal agency which has the power to address unfair labor practices and safeguard employees' rights.

These groups were particularly outraged at Obama naming the three NLRB members while the Senate was not conducting business, but was not technically in a recess.

At least one justice appeared to see the dispute as primarily political.

Justice Stephen Breyer, an appointee of Democratic President Bill Clinton, said the Constitution clearly envisioned that appointments had to be agreed upon by both the president and Congress. "Now that's a political problem, not a constitutional problem" if the two sides disagree, he said.

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