The PJ Tatler

GOP Keeps Close Eye on Supreme Court as Liberal Justices Doubt Obama's Appointment Power

Republican senators anxiously watched more than an hour and a half of arguments before the Supreme Court today on President Obama’s recess appointments, with Lamar Alexander (Tenn.) saying the court has the “opportunity to guard against the dangers of an imperial presidency.”

The case argues that the January 2012 appointments of Richard Griffin, Jr., Sharon Block, and Terence Flynn to the National Labor Relations Board were unconstitutional because the Senate was in pro forma session instead of recess.

“Three federal circuit courts of appeals have already ruled that the president violated the Constitution when he made so-called recess appointments while the Senate was in session, and now the U.S. Supreme Court has an opportunity to guard against the dangers of an imperial presidency. One of the Senate’s most important roles in our system of checks and balances is its constitutional power of advice and consent on presidential nominees, and the Senate decides when it is in session – not the president,” Alexander said Friday.

Obama eventually submitted new nominees who were properly confirmed by the Senate, but not before the NLRB made some decisions with the disputed appointees. The U.S. Circuit Court of Appeals for the District of Columbia ruled a year ago that the appointments were unconstitutional.

In May, Alexander and other Senate GOPs submitted a friend of the court brief against the appointments.

Sen. Mike Lee (R-Utah) and Senate Minority Leader Mitch McConnell (R-Ky.) were among the opponents of the pro forma appointments who attended oral arguments today.

“After hearing oral arguments today, I am very confident the Supreme Court will affirm the DC Circuit Court’s judgment in NLRB v Noel Canning and determine that the president’s recess appointments on January 4, 2012, were unconstitutional,” said Lee. “In making the appointments, the president took a power that does not belong to him. It rightfully belongs to the American people, through their representatives in the Senate, and is an essential constitutional check on the executive branch.  I am confident the Supreme Court will restore the Senate’s prerogatives and condemn this assault on the rule of law.”

SCOTUS Blog writer Lyle Denniston attended the arguments and said the administration could be in trouble on this one. “Even some of the Justices whose votes the government almost certainly needs to salvage an important presidential power were more than skeptical,” Denniston wrote, noting that Justice Elena Kagan said “at least twice that ‘it was the Senate’s job to decide’ when it goes out on recess, thus giving it the ability to control when, or if, the president may make such appointments.”

More from Denniston:

Second, Chief Justice John G. Roberts, Jr., commented that the Senate has “an absolute right to refuse” to approve any of a president’s nominees, whether or not the president thinks that such a refusal is “intransigence.”  Roberts also sought to explore how far the Senate could go to frustrate a president over recess appointments, wondering if it could simply decide never to take a recess.

Third, Justice Anthony M. Kennedy made several remarks suggesting that, while he had some doubt about what the wording of the Recess Appointments Clause might mean, he was attracted to the notion that the Senate could control that whole process by returning to its chamber for no-business (“pro forma”) sessions to take away a president’s recess powers.  The scope of that option is embraced in a question that the Court agreed to add to the case at the urging of the opponents of broad presidential power to fill vacancies when the Senate is technically out of town.

The lengthy argument, taken as a whole, seemed to go considerably better for those opponents than for the defender of presidential authority, U.S. Solicitor General Donald B. Verrilli, Jr.  The Solicitor General made little headway in arguing that the Constitution meant the president to have significant power to make temporary appointments, and that deferring to the Senate would, in effect, destroy that power.  He seemed to startle even some of the more liberal judges when he said that, if it was a contest between historical practice and the words of the Constitution, practice should count the most.