Were Obama recess appointments constitutional? Supreme Court takes case
The Supreme Court will weigh in on a major flash point between President Obama and Senate Republicans, who challenge his use of recess appointments while their chamber is holding 'pro forma' sessions.
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The appeals court agreed, ruling that the president’s recess appointments to the NLRB were unconstitutional. The court said the president has the power to make recess appointments only between complete, enumerated sessions of Congress, rather than during brief recesses or intra-sessional breaks.Skip to next paragraph
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The appeals court also ruled that the president could only use recess appointments to fill vacancies that arose during an intersessional recess – a recess between the old Congress and a new Congress.
In his brief urging the high court to take up the case, Noel Canning’s lawyer, Noel Francisco, suggested that in addition to considering the appeals court’s decision concerning intersessional recesses, the court should also examine whether the president’s authority to make recess appointments applies when the Senate is convening every three days in pro forma sessions.
In its brief order on Monday, the court agreed to examine that issue as well as the broader question raised in the case.
“Until January 4, 2012 – when the President made the appointments at issue – no President had ever attempted to make recess appointments where the Senate was convening in pro forma sessions every three days,” Mr. Francisco wrote in his brief.
He said Obama’s actions made him “the first President in history to attempt an intrasession recess appointment while the Senate was convening sessions every three days.”
Solicitor General Verrilli also urged the high court to take up the case, but for a different reason. He said the appeals court decision, if allowed to stand, would “dramatically curtail the scope of the President’s authority” to make recess appointments.
“Before that decision, Executive practice had long been predicated on the understanding that the Recess Appointments Clause authorizes the President to fill vacancies that exist during a recess of the Senate, regardless of whether the recess occurs between two enumerated sessions of Congress or during a session, and regardless of when the vacancies first arose,” the solicitor general said in his brief.
He warned that the appeals court decision, if upheld, would “deem invalid hundreds of recess appointments made by Presidents since early in the nation’s history.”
The solicitor general added: “It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.”
A friend-of-the-court brief filed on behalf of Senate Republican leader Mitch McConnell and 44 other senators denounced Obama’s use of the recess appointment authority as a “presidential power-grab.”
“The President usurped two powers that the Constitution confers explicitly, and exclusively, on the Senate,” Washington lawyer Miguel Estrada wrote in the McConnell brief. The two Senate powers are the ability to reject an appointment and the authority of the Senate to write its own rules for when the Senate is in session and when it is in recess.
Mr. Estrada said that the president “resorted to recess appointments in January 2012 not because the Senate was unable to give an answer on nominations, but because he did not like the answer he received.”
Others view the recess appointment authority as a broader grant of power to the president. “By giving the President the power to ‘fill up all vacancies that may happen during the recess of the Senate,’ the Framers ensured that the President could fill any vacancies that existed when the Senate was unable to perform its advise-and-consent function,” wrote Elizabeth Wydra in a friend-of-the-court brief on behalf of the Constitutional Accountability Center.
She said that the president retains the power to make recess appointments regardless of whether it comes between sessions or during a session. “This interpretation is consistent with Framing-era understanding of the term ‘recess,’ and the court below points to nothing in the clause’s text or history that compels a contrary result,” she wrote.