| Politico | - |
The
Supreme Court seems poised to reject President Barack Obama's bold use
of the recess appointment power, judging from the surprisingly
widespread hostility the administration's arguments received Monday from
conservative and liberal justices.
SCOTUS skeptical on White House recess appointments
The Supreme Court seems poised to reject President Barack Obama’s
bold use of the recess appointment power, judging from the surprisingly
widespread hostility the administration’s arguments received Monday
from conservative and liberal justices.
After more than 90 minutes of arguments, it appeared the court was likely to rule unconstitutional a batch of controversial nominations Obama made two years ago. It was less clear how severe a blow the justices would deliver against the president’s power to fill executive positions in the face of Senate intransigence or absence, but the justices comments signaled it would be one that significantly reins in the way the power has been used by recent presidents.
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Solicitor General Donald Verrilli quickly warned the court that upholding the challenge to Obama’s appointees threatened to cast doubt on the legitimacy “of thousands of appointees by presidents going back to George Washington.”
However, the justices suggested a ruling upsetting longtime understandings of recess appointment powers wouldn’t have a terribly severe impact because various doctrines would prevent the overturning of past decisions by judges and other recess-appointed officials.
“You really don’t think we’re going to go back and rip out every decision” by a judge appointed under the power, conservative Justice Antonin Scalia asked.
“I certainly hope not,” Verrilli replied.
The dispute has several elements, any one of which could lead Obama’s early 2012 recess appointments to be upended.
The U.S. Court of Appeals for the D.C. Circuit had ruled the appointments unconstitutional on three separate grounds: that the recess appointment power only exists during breaks between Senate sessions and not in the middle of them, that the vacancy to be filled has to arise during the recess in question, and that the Senate’s practice of holding regular “pro forma” sessions essentially blocks the president from making such nominations.
The justices seemed closest to a consensus on the “pro forma” sessions issue, and appeared highly reluctant to inject themselves into the Senate’s affairs by second-guessing its claim to be in session.
“It really is the Senate’s job to determine whether they were in a recess,” said Justice Elena Kagan, an Obama appointee.
Justice Anthony Kennedy, a Republican appointee, said he was troubled that the administration’s arguments would allow the president to act during virtually any halt in Senate action, whether “a one-hour break, a one-day break, a three-day break…or a one-month break.”
“Your argument is, it seems to me, missing a limiting principle,” Kennedy said.
Verrilli seized on the Senate’s declaration that it would not do business during the pro forma sessions held amidst the break in question, but Chief Justice John Roberts said the Senate could easily tweak its language to insist it was open for business.
“You’re just talking about a couple of magic words that the Senate can change at the drop of a hat,” Roberts said.
Even liberal Justice Stephen Breyer, who was perhaps most favorable to the president’s case, expressed puzzlement at the administration’s claim that Congress was actually in a lengthy recess at the time Obama acted. Breyer noted that if the Senate recessed it ran afoul of the Constitution by failing to notify the House.
“Would you write an opinion that [says] the Senate of the United States has violated two provisions of the Constitution?” Breyer asked Verrilli.
The high-profile case drew a number of prominent watchers from the White House and the Republican side of the Senate. White House Press Secretary Jay Carney and White House Counsel Kathryn Ruemmler entered the court chamber a few minutes before the arguments began, sitting in the gallery near a Congressional contingent that included Senate Minority Leader Mitch McConnell, Sens. Deb Fischer (R-Neb.), Mike Lee (R-Utah) and Jeff Sessions (R-Ala.)
Prominent conservative attorney Miguel Estrada addressed the court during Monday’s arguments, presenting arguments as friends of the court on behalf of McConnell and 44 Senate Republicans.
Earlier the court session Monday, Scalia asked Verrilli why the court should overlook language in the Constitution that says the president can make appointments unilaterally when a vacancy “happens” during a Senate recess.
“If you ignore the Constitution often enough, its meaning changes?” Scalia said sarcastically, pressing Verrilli for a yes-or-no response.
Verrilli disputed that the language requires a vacancy to arise during a particular recess for the power to kick in, but ultimately said that even if it did, the court should defer to the historical record showing numerous such appointments.
“The practice should govern,” the administration lawyer insisted.
After more than 90 minutes of arguments, it appeared the court was likely to rule unconstitutional a batch of controversial nominations Obama made two years ago. It was less clear how severe a blow the justices would deliver against the president’s power to fill executive positions in the face of Senate intransigence or absence, but the justices comments signaled it would be one that significantly reins in the way the power has been used by recent presidents.
Continue Reading
The case before the court addressed the
constitutionality of Obama’s actions in January 2012, when he bypassed
the Senate by making politically-sensitive recess appointments of three
individuals to the National Labor Relations Board and another to head
the new Consumer Financial Protection Bureau.
The appointments came during a period when the Senate claimed to be
in session, even though it was on a 20-day break. The chamber was
gaveled in briefly every three days, apparently in an attempt to stymie
recess appointments. However, a Senate resolution said no business was
to be conducted.Solicitor General Donald Verrilli quickly warned the court that upholding the challenge to Obama’s appointees threatened to cast doubt on the legitimacy “of thousands of appointees by presidents going back to George Washington.”
However, the justices suggested a ruling upsetting longtime understandings of recess appointment powers wouldn’t have a terribly severe impact because various doctrines would prevent the overturning of past decisions by judges and other recess-appointed officials.
“You really don’t think we’re going to go back and rip out every decision” by a judge appointed under the power, conservative Justice Antonin Scalia asked.
“I certainly hope not,” Verrilli replied.
The dispute has several elements, any one of which could lead Obama’s early 2012 recess appointments to be upended.
The U.S. Court of Appeals for the D.C. Circuit had ruled the appointments unconstitutional on three separate grounds: that the recess appointment power only exists during breaks between Senate sessions and not in the middle of them, that the vacancy to be filled has to arise during the recess in question, and that the Senate’s practice of holding regular “pro forma” sessions essentially blocks the president from making such nominations.
The justices seemed closest to a consensus on the “pro forma” sessions issue, and appeared highly reluctant to inject themselves into the Senate’s affairs by second-guessing its claim to be in session.
“It really is the Senate’s job to determine whether they were in a recess,” said Justice Elena Kagan, an Obama appointee.
Justice Anthony Kennedy, a Republican appointee, said he was troubled that the administration’s arguments would allow the president to act during virtually any halt in Senate action, whether “a one-hour break, a one-day break, a three-day break…or a one-month break.”
“Your argument is, it seems to me, missing a limiting principle,” Kennedy said.
Verrilli seized on the Senate’s declaration that it would not do business during the pro forma sessions held amidst the break in question, but Chief Justice John Roberts said the Senate could easily tweak its language to insist it was open for business.
“You’re just talking about a couple of magic words that the Senate can change at the drop of a hat,” Roberts said.
Even liberal Justice Stephen Breyer, who was perhaps most favorable to the president’s case, expressed puzzlement at the administration’s claim that Congress was actually in a lengthy recess at the time Obama acted. Breyer noted that if the Senate recessed it ran afoul of the Constitution by failing to notify the House.
“Would you write an opinion that [says] the Senate of the United States has violated two provisions of the Constitution?” Breyer asked Verrilli.
The high-profile case drew a number of prominent watchers from the White House and the Republican side of the Senate. White House Press Secretary Jay Carney and White House Counsel Kathryn Ruemmler entered the court chamber a few minutes before the arguments began, sitting in the gallery near a Congressional contingent that included Senate Minority Leader Mitch McConnell, Sens. Deb Fischer (R-Neb.), Mike Lee (R-Utah) and Jeff Sessions (R-Ala.)
Prominent conservative attorney Miguel Estrada addressed the court during Monday’s arguments, presenting arguments as friends of the court on behalf of McConnell and 44 Senate Republicans.
Earlier the court session Monday, Scalia asked Verrilli why the court should overlook language in the Constitution that says the president can make appointments unilaterally when a vacancy “happens” during a Senate recess.
“If you ignore the Constitution often enough, its meaning changes?” Scalia said sarcastically, pressing Verrilli for a yes-or-no response.
Verrilli disputed that the language requires a vacancy to arise during a particular recess for the power to kick in, but ultimately said that even if it did, the court should defer to the historical record showing numerous such appointments.
“The practice should govern,” the administration lawyer insisted.
Read more: http://www.politico.com/story/2014/01/white-house-recess-appointments-supreme-court-102104.html#ixzz2qJ0HxSTR
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