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Supreme Court Hears Challenge over Obama's Recess Appointments

Stockbyte/Thinkstock(WASHINGTON) -- The Supreme Court appears on the verge of slapping President Obama on the wrist for using his recess appointment power to install members of his administration while the Senate was not in a self-declared recess.

In a case that could sharply limit, if not end, the ability of modern presidents to fill posts when the Senate won’t, a clear majority of justices voiced their skepticism of the Obama administration’s argument that the president has the constitutional authority to appoint nominees simply because he believes the jobs need to be filled.

Rather, most justices suggested at oral argument Monday, the Senate is to be its own judge of determining when it’s in recess, and it has no obligation to act on nominations at all.

“[The Senate has] the absolute right not to confirm nominees,” said Chief Justice John Roberts.

The Obama administration’s lawyer, Solicitor General Donald Verrilli, argued a “stable equilibrium” has emerged over recent decades, leading to the generally accepted notion that the president’s power to appoint during Senate recesses serves as a check on the body’s unwillingness to confirm his most controversial nominees.

But when, exactly, is the Senate in "recess?" The administration argues that by quickly gaveling in and gaveling out every three days, as it has in an attempt to stymie the president’s power to fill posts, the Senate is encroaching on the president’s constitutional turf.  Justices, however, didn’t seem to buy that.

“You’re making a very, very aggressive argument for executive power,” said Justice Samuel Alito, a George W. Bush appointee.

But couldn’t the Senate’s “pro forma” sessions constitute a de facto recess?  Even Obama appointees to the high court argued that’s not the White House’s call to make.

“It really is the Senate’s job to determine if they’re in recess or not,” said Justice Elena Kagan.

“The Senate could choose to never recess,” Justice Sonia Sotomayor said, adding to laughter that many Americans would surely prefer it if their lawmakers spent less time on vacation.

On a long discussion over the original intent of the recess appointment clause, Justice Ruth Bader Ginsburg suggested the founders had a “vision” of a Senate recess running for months, with members taking a treacherous ride on horseback to and from the Capitol.  “Today it is nothing like that,” Ginsburg said.

Kagan took that argument a step further, saying that with the end of the “horse and buggy days,” the recess appointment clause seems a “historic relic,” and said it seems to have “assumed a new purpose that nobody intended it to have.”

“I cannot find anything that says the purpose of this clause has anything to do with political fights,” said liberal Justice Stephen Breyer.

This particular case involves the president’s appointment of two members of the National Labor Relations Board a day after the start of the 112th congress’s second session in January 2012.  A Washington state business brought suit against the NLRB, challenging a ruling based on the notion that its members weren’t appointed legitimately.

Verrilli said an affirmation of an appeals court ruling that the president could only appoint officials between sessions of congress “would repudiate the constitutional legitimacy of thousands of appointments” over the years.  He said the D.C. Circuit Court of Appeals decision has left rulings of the NLRB “under a cloud.”

Conservative lawyer Miguel Estrada, who never achieved confirmation to the federal appeals bench when nominated by George W. Bush, argued on behalf of Senate Republicans that the “parade of horribles” offered by the administration was bluster.

“There is no parade and there is no horribles,” Estrada said to laughter.  Rather, Estrada said, President Obama has undertaken a “complete abuse” of his power.

Justices are expected to rule before the term ends in June.

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