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Three different federal appeals court ruled the “recess
appointments” President Obama made two years ago to the National Labor
Relations Board were an abuse of power,  that he acted when the Senate
was not actually in a recess and  and the board has not had quorum to

Furthermore they ruled the way recess appointments have
been made by all recent presidents have been unconstitutional. arguing
that the president’s recess appointment powers don’t apply to
“intrasession” appointments (such as when they close for a holiday) only
after Congress has adjourned a session permanently, which usually
means only at the end of a year.

Today the fight reaches the supreme court. The case being argued at the high court Monday is the first in the nation’s history to consider the meaning of the provision of the Constitution that allows the president to make temporary appointments to positions that otherwise require Senate confirmation, but only when the Senate is in recess. In other words no one ever asked  before.

The big issues are whether recess appointments can be made only during the once-a-year break between sessions of Congress and whether the vacancy must occur while the Senate is away in order to be filled during the same break.

Solicitor General Donald Verrilli Jr. told the court that 14 presidents have temporarily installed 600 civilians and thousands of military officers in positions that were vacant when the Senate went into recess at any point, a practice that has been well understood by both presidents and lawmakers. A high court ruling that a recess only happens once a year would “dramatically upset that long-settled equilibrium,” Verrilli said.

The narrower issue is whether brief, pro forma sessions of the Senate, held every few days to break up a longer Senate hiatus, can prevent the president from making recess appointments. That’s what the Senate did, at Republicans’ insistence, during the time when Obama acted.

Senate Republicans say the answer is easy.

“Who determines — the Senate, or the president — whether the Senate is in session? The Constitution’s text and structure point to only one answer: the Senate,” the Republicans said in court papers.

But Verrilli said the Senate made clear in voting for the pro forma sessions that no business would be conducted and that, in essence, the Senate would be in recess. “The president took the Senate at its word. And rightly so,” he said.

The importance of this case goes beyond recess appointments. This president has found many ways to try and expand presidential power,this could be the first of many cases trying to limit what has become an imperial presidency.

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