Jus­tices wary of Obama’s use of re­cess pow­ers Rul­ing may de­pend on Con­sti­tu­tion word­ing

The Washington Times Weekly - - Politics - BY STEPHEN DINAN

Supreme Court jus­tices were skep­ti­cal Mon­day of Pres­i­dent Obama’s claim of al­most un­lim­ited ap­point­ment pow­ers, say­ing he ap­peared to be tram­pling on the founders’ vi­sion when he tried to do an end-run around the Se­nate in 2012.

While the jus­tices ap­peared to strug­gle with how far to go in their rul­ing, most of them, in­clud­ing Mr. Obama’s nom­i­nees to the court, took dim views of the pres­i­dent’s move to name three mem­bers to the Na­tional La­bor Re­la­tions Board in Jan­uary 2012.

If they ruled nar­rowly, they could sim­ply in­val­i­date Mr. Obama’s ap­point­ments by find­ing he tried to make them when the Se­nate con­sid­ered it­self in ses­sion, not in re­cess. But the court also could go fur­ther and limit the pres­i­dent’s re­cess pow­ers to the short pe­riod af­ter the Se­nate ad­journs at the end of each year.

In 90 min­utes of oral ar­gu­ments, the jus­tices fought over whether the word “hap­pen” means some­thing dif­fer­ent from what it did in the late 1700s, de­bated the sep­a­ra­tion of pow­ers be­tween the branches, and sparred with Don­ald B. Ver­rilli Jr., the Obama ad­min­is­tra­tion’s so­lic­i­tor gen­eral, about the pres­i­dent’s ex­pan­sive claims.

Mr. Ver­rilli said that what­ever the lan­guage of the Con­sti­tu­tion, Congress and the White House have come to a bal­ance, with se­na­tors ob­struct­ing far more than they used to, and the pres­i­dent us­ing his re­cess pow­ers to cir­cum­vent them.

“We have, I would sub­mit, a sta­ble equi­lib­rium that has emerged over the course of this coun­try’s his­tory be­tween the two branches,” he said. “What we are ad­vo­cat­ing for here is the sta­tus quo.”

He ac­knowl­edged that the re­cess ap­point­ment power has moved be­yond its orig­i­nal in­tent and has now be­come a “safety valve” for the pres­i­dent.

But Jus­tice Stephen G. Breyer said the Found­ing Fa­thers didn’t in­tend for the re­cess power to be a po­lit­i­cal tool to help the pres­i­dent avoid Se­nate ap­proval.

“I can’t find any­thing that says the pur­pose of this clause has any­thing at all to do with po­lit­i­cal fights be­tween Congress and the pres­i­dent,” he told Mr. Ver­rilli.

The case, the first oral ar­gu­ment of 2014, at­tracted ma­jor in­ter­est. Se­nate Mi­nor­ity Leader Mitch McCon­nell, Ken­tucky Repub­li­can, at­tended Mon­day’s ar­gu­ment and said the jus­tices were “rightly skep­ti­cal” of Mr. Obama’s claims.

Also in at­ten­dance were the White House’s chief at­tor­ney, Kathryn Ruemm­ler, and press sec­re­tary Jay Car­ney, who said he be­lieves the court will side with Mr. Obama.

“We’re con­fi­dent that the courts will up­hold the pres­i­dent’s au­thor­ity and look for­ward to res­o­lu­tion of this mat­ter,” Mr. Car­ney told re­porters at the White House later.

Un­der the Con­sti­tu­tion, the pres­i­dent has the duty to nom­i­nate key of­fi­cials, but the Se­nate is given the power to con­firm them. Rec­og­niz­ing that Congress, par­tic­u­larly in its early days, was sit­ting only a few weeks or months a year, the founders also cre­ated an emer­gency clause say­ing the pres­i­dent “shall have the power to fill up all va­can­cies that may hap­pen dur­ing the re­cess of the Se­nate.”

In re­cent years, with Congress meet­ing al­most con­tin­u­ously, the re­cess ap­point­ment power in­stead has be­come a tool that pres­i­dents of both par­ties have used to cir­cum­vent Congress when se­na­tors have tried to ob­struct his nom­i­na­tions.

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