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January 13, 2014

Supreme Court Hears Arguments on Obama's Claimed Power to Make Temporary Appointments Even When the Senate is Not Recessed

While the Constitution permits the President to make temporary appointments to executive positions when the Senate is in recess, Obama, get this, violated the Constitution by claiming the Senate was in recess when the Senate itself said it wasn't in recess. His appointees -- illegal ones -- made some rulings on the National Labor Relations Board which should be nullities, as men with no right to sit on the NLRB did in fact sit there.

Obama claims, get this, that his Constitutional powers grow when he decides a coequal branch of government is being "intransigent" and failing to give him everything he wants.

The argument did not seem to persuade most of the Court. Even the liberal members seemed wary of the claim:

The court battle between the Obama administration and Senate Republicans is an outgrowth of the increasing partisanship and political stalemate that have been hallmarks of Washington over the past 20 years, and especially since Obama took office in 2009.

Indeed, Justice Elena Kagan seized on the political dispute to make the point to Verrilli that "congressional intransigence" to Obama nominees may not be enough to win the court fight.

Kagan, Verrilli's predecessor as Obama's top Supreme Court lawyer, suggested that it "is the Senate's role to determine whether they're in recess."

More:

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. ...

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.

...

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.

Only Ruth Bader Ginsburg seemed to support the Administration's power grab.

Via @charlescwcooke.


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posted by Ace at 02:05 PM

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