Obama likely to lose recess appointments case

While it’s predict the outcome of a case on oral arguments, the Supreme Court seems poised to strike down President Barack Obama’s appointments to the National Labor Relations Board (NLRB), via The Hill:

Nearly every justice on the nation’s highest adjudicating body questioned the constitutionality of his 2012 National Labor Relations Board picks, which bypassed Senate confirmation.

Even Justice Elena Kagan, an Obama appointee and part of the court’s liberal wing, said, “The history is entirely on the Senate’s side, not your side.”

Chief Justice John Roberts also defended the Senate’s role in approving nominees as an important check on presidential power, contending, “They have an absolute right not to confirm nominees that the president submits.”
But most of the justices appeared receptive to arguments that the court should uphold a lower court’s ruling that the nominations were unconstitutional and should be invalidated.

Such a decision, the government’s attorney warned, could deprive Obama and future presidents of authority that was expressly granted by the nation’s framers and has been used since George Washington’s administration.

At issue is whether President Obama overstepped his authority in January 2012 when he made three recess appointments to the NLRB. The problem is that the Senate was in pro forma session — meaning that it had not formally adjourned and that the recess appointments are invalid.

Kagan wasn’t the only member from the Court’s Leftist bloc to take issue with the recess appointments, as Lyle Denniston of SCOTUSBlog noted:

Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem, not a constitutional problem.  Senators of both parties have used the Constitution’s recess appointment provisions to their own advantage in their “political fights,” Breyer said, but noted that he could not find anything in the history of the clause that would “allow the president to overcome Senate resistance” to nominees.
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.

Again, no one wants to be too confident in the outcome of a decision based solely on the oral arguments. But it appears that the Constitution scored an important victory yesterday at the Supreme Court.

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