WASHINGTON, D.C. | January 14, 2014 -
President Obama treats limits on executive power like college students treat the 21-year drinking age, and judging from oral arguments Monday the Supreme Court may respond by limiting his driving privileges. The vote may even be 9-0 that a President can't tell Congress when it is in recess so he can shred the Senate's power to offer "advice and consent" on his nominees.
That's our reading of Monday's back and forth in National Labor Relations Board v. Noel Canning, which challenges Mr. Obama's three Jan. 4, 2012 recess appointments to the NLRB. The Senate had met on Jan. 3 to gavel in its constitutionally required first day of the session. It then declared itself in pro-forma session without objection precisely to block the President from using his recess power. Each day the Senate gavelled itself into session and then adjourned.
Yet Mr. Obama ignored all this and declared a recess that entitled his lordship to make the recess appointments. We have supported the recess appointment power. But no President had ever claimed to decide for himself when Congress was in recess, and George W. Bush had expressly declined to act in similar circumstances.
The appointments gave the NLRB a quorum that allowed it to make hundreds of pro-union decisions. A Washington state Pepsi bottler is challenging one of those decisions as illegal because the recess appointments were illegal. In an especially pungent opinion for a unanimous three-judge panel, Judge David Sentelle of the D.C. Circuit Court of Appeals struck down Mr. Obama's power grab as a violation of the separation of powers.
The Obama Administration appealed, and judging by the questions on Monday it is going to lose. Both the liberal and conservative Justices seem wary of letting the President decide when the Senate is in session.
Justice Elena Kagan, an Obama appointee, noted that the original purpose of the recess power was to fill vacancies in the horse-and-buggy era when Congress was out of session for months. But now Presidents use it to make end runs around the Senate's confirmation power.
"And that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have," said Justice Kagan. She added later that the arguments suggest "it really is the Senate's job to determine whether they're in recess or whether they're not."
If the President can arbitrarily declare the Senate in recess when it gavelled in the day before, what's to stop him from making recess appointments overnight, or on the weekend, or any other time the Senate is "unavailable" to act on his nominees? Contrary to White House claims that pro-forma sessions are a sham, the Senate conducted business during those days, even passing an extension of the payroll tax cut.
As Justice Anthony Kennedy put it to Mr. Obama's lawyer, Solicitor General Donald Verrilli : "Your argument [that the President can define a recess] is, it seems to me, in search of a limiting principle. A lunch break, a one-day break—you've thought about this—a three-day break, a one-week break, a one-month break. How do you resolve that problem for us?"
Someone should put "had no limiting principle" on Mr. Verrilli's tombstone.
The Justices didn't seem as willing to go as far as the D.C. Circuit and find that the President can only make recession appointments between sessions of Congress, never during a recess within a session. Judge Sentelle made a compelling case that this was the intent of the Constitution's Appointments Clause.
But Presidents of both parties have made recess appointments within sessions, and only Justice Antonin Scalia seemed tempted to overturn that practice based on original intent. Chief Justice John Roberts is also unlikely to do so if he can get a nearly unanimous decision on the narrower question.
Even a narrow ruling would be welcome, however, because it would highlight Mr. Obama's contempt for constitutional limits. His agencies rewrite statutes as they like, and he chooses to suspend the enforcement of laws (immigration, marijuana) when it serves his political goals.
Those abuses don't make it to court because the aggrieved party is Congress, which usually lacks the standing to sue. In NLRB v. Noel Canning, the Pepsi bottler has standing as a private party that suffered harm, and the Chamber of Commerce was willing to fight on its behalf.
The immediate practical impact may also be less important now that Senate Democrats have changed Senate rules to confirm nominees by 51 votes instead of 60. But someday the Senate will be ruled by a different party than the President, and the advice and consent power will be relevant again. The Supreme Court can do a public service by telling the constitutional lawyer in the White House that he can't unilaterally rewrite the Constitution.
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