(Photo by Saul Loeb/AFP/Getty Images)
WASHINGTON - A majority of Supreme Court justices expressed grave doubts Monday about presidents' power to make appointments without Senate approval by claiming that lawmakers are in recess.
The skepticism voiced not only by conservative but by liberal members of the high court make it likely that President Obama will lose a landmark separation of powers case pitting the executive and legislative branches.
Solicitor General Donald Verrilli argued vigorously that presidents must be able to fill out their administrations when the Senate is only holding "pro-forma" sessions every three days, as it has done in the past to block such appointments. But justices named by Democratic and Republicans presidents saw things differently.
"You're latching on to the recess appointments clause as a way to deal with that intransigence," said Chief Justice John Roberts, a George W. Bush nominee.
"It really is the Senate's job to determine whether they're in recess or not," said Justice Elena Kagan, who was nominated by Obama.
The importance of the epic balance-of-powers battle was evident by the packed courtroom. Several seats apart in the second row were Senate Republican leader Mitch McConnell, Obama's chief adversary in Congress, and White House press secretary Jay Carney.
While clearly siding with the Senate on the issue of pro-forma sessions, the justices appeared likely to rule for the administration on at least one or both of the other issues: whether recess appointments can only be made during the single break between annual legislative sessions, and only when the vacancies occur during those periods.
That was the strict reading of the Constitution upheld by the U.S. Court of Appeals for the D.C. Circuit, but Verrilli argued that such an interpretation would risk the legitimacy of thousands of appointments dating back to the presidency of George Washington.
The debate focused on balancing that long history -- during which presidents frequently appointed officials while the Senate was out of town -- against the precise words in the Constitution. At times, the justices and litigators quarreled over the meanings of the words "the" and "happen."
"This court has never shied away from enforcing the strictures of the Constitution," argued Noel Francisco, the attorney representing Pepsi bottler Noel Canning, which had contested a decision of the National Labor Relations Board dominated at the time by Obama's recess appointees.
But Justice Stephen Breyer and other justices noted a long history of presidents making recess appointments. "Over time, language in the Constitution takes on a somewhat different meaning," he said.
The battle pits Obama's brazen appointments of labor and financial watchdogs against Senate Republicans' unprecedented efforts to block or delay his nominations. In the long run, however, it's not a partisan issue. It pits all presidents against Congress, and common practices against the Constitution.
After enduring three years of Republican obstruction, Obama opened 2012 by naming three members to the labor board and a new consumer protection czar while the Senate was gaveling in and out every three days without conducting any business.
Obama said the Senate was in recess. Under the Constitution, presidents can fill vacancies during recesses for up to two years without Senate confirmation.
The fight has been diffused somewhat by Democrats' equally brazen Senate rules change in November, which stopped a minority of senators from being able to block executive branch and judicial nominations.
But the battle will be rejuvenated whenever presidents and Senates are controlled by opposite parties. That's a situation faced by all recent presidents, who have used the recess appointments power to circumvent lawmakers when necessary. Ronald Reagan made 232 recess appointments; Bill Clinton and George W. Bush each made well more than 100. Obama, to date, has made only 32.
The Supreme Court case, National Labor Relations Board v. Noel Canning, raises a basic question about the Constitution - is it inviolate, as Justice Antonin Scalia believes, or subject to perpetual interpretation - a "living Constitution" in the mold of former justice Oliver Wendell Holmes?
If the former view wins out, presidents' freedom to make appointments during congressional recesses will be sharply limited. Even if the D.C. Circuit's strict interpretation is struck down, the justices appear ready to rule that holding pro-forma sessions every three days - as both Senate Democrats and Republicans have done in the past - is enough to prevent recess appointments.
At the very least, hundreds of decisions made by the labor board while dominated by Obama's recess appointees in 2012 and half of 2013 would be called into question. The new five-member board, including four members since approved by the Senate, would have to revisit those cases. Consumer protection chief Richard Cordray's rulings would be similarly tainted, but he has since been confirmed and could stick by his prior actions.
If the high court agrees with the D.C. Circuit and goes further - say, by limiting recess appointments to formal recesses between annual congressional sessions - it could call into question the validity of many more recess appointments, such as George W. Bush's naming of 11th Circuit appeals court Judge William Pryor in 2004. The practical impact would be less, since recess appointments are temporary. Pryor was later confirmed by the Senate.
By Richard Wolf