Lawyers for Barack
Obama faced the Supreme Court on Monday, January 13, 2014, to defend his use of executive power in temporarily filling high-level posts. The case concerns his so-called “recess
appointments” during his first term when he made three temporary appointments
to the National Labor Relations Board (NLRB) while Congress was technically
still in session.
Lower courts said the
appointments were unconstitutional, and experts claim that the decision “could
endanger hundreds of NLRB decisions.
Even more significant are the ramifications for future presidents, with
the court poised either to bolster or blunt the chief executive’s appointment
powers.”
Michael Lotito, an employment and labor attorney with the law
firm Littler Mendelson P.C.’s Workplace Policy Institute, told the Hill
newspaper: “Rulings like this have
implications that last for centuries.”
Presidents have used their
executive power to temporarily fill positions.
Most recess appointments were to “install judges and fill top federal
vacancies” that would require Senate approval.
“But with the disputed NLRB appointments, Obama became the first
president to appoint nominees when the Senate was in a `pro-forma’ session,
when the upper chamber is briefly called to order and adjourned every few days.
“The sessions are intended to
prevent recess appointments, and usually only a handful of senators are present
for them. In filling the NLRB posts, the
Obama administration claims that the Senate is generally not available to
conduct business during the sessions, so the president’s recess appointment power
is in effect.”
Nicholas Quinn Rosenkranz of the
Georgetown University Law Center is arguing against the government and claims
that the Obama administration has to win three points. “First, it must convince the justices that
presidents may make appointments during regular recesses and not, as the
appeals court rules, 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.”
Rosenkranz
said that “proving all three points, particularly the last, would be a tall
order” and predicted a unanimous win for Joel Canning.
United Press International reported that “A Congressional
Research Service report found 329 recess appointments since President Ronald
Reagan in 1981 would not meet the appeals court’s criteria and could therefore
be ruled void if the appeals court’s ruling is upheld.
“Upholding
the appeals court’s decision `would repudiate the constitutional legitimacy of
thousands of appointments made by at least 14 presidents since the 1860s,’
Solicitor General Donald Verrilli wrote in a brief.
“Verrilli
argued the Senate was not permitted to use pro forma sessions to unilaterally
hamstring or manipulate the president’s recess appointments authority. `Whatever leeway the Senate may enjoy when
governing its own affairs, it cannot exploit that leeway to limit the president’s
constitutional authority,’ he wrote.
“But
Noel Francisco, a Washington appellate lawyer challenging the recess
appointments, argued it was up to the Senate, not the president, to decide when
the Senate is in session.
“`Presidents
have discretion to decide whether to make recess appointments, and to select
whom they appoint. But they may not also
determine when that power is available.’ Francisco said. `That decision is for the Senate alone.’”
