Supreme Court justices across the ideological spectrum voiced skepticism on Monday about the way President Obama and other presidents have made temporary recess appointments to fill executive branch vacancies.
Article II of the Constitution says: "The President shall have the power to fill up all vacancies that may happen during the recess of the Senate," and that these appointees shall serve until the end of the following year, or longer if they are confirmed.
The Senate has never liked recess appointments and has tried different ways to discourage them. But presidents back to George Washington have made them, with the pace of these appointments accelerating in the 20th century, especially in the latter part of the century, with President Reagan leading the charge.
The battle between the two branches reached a new high in 2012 when Republicans, facing a 20-day, mid-session recess, forced the Senate to conduct super-short sessions with the stipulation that no business would be conducted. Typically, these pro forma sessions would take place in a near-empty chamber, with a single senator, usually from nearby Virginia or Maryland, gaveling the session open, and then closed.
The whole thing would last about 20 to 30 seconds. President Obama considered these sessions a fake, a legal fiction aimed at preventing him from making recess appointments, and so he went ahead and made three appointments to the National Labor Relations Board, which had been unable to enforce the nation's labor laws because it lacked a quorum.
Republicans and their allies in the business community challenged the appointments as unconstitutional, contending that the Senate had not been in recess. They won their case at the U.S. Court of Appeals for the District of Columbia and the government appealed to the Supreme Court, which heard arguments on Monday.
Solicitor General Donald Verrilli told the justices that the challengers interpretation of the Recess Appointments Clause would "repudiate the legitimacy of thousands of [recess] appointments of presidents going back to George Washington, and going forward would write the president's recess appointment power 'out of the Constitution.'"
The justices, both liberal and conservative, quickly piled on with questions. "You're not suggesting that the actions of these recess appointees would be invalid, are you?" asked Chief Justice John Roberts. Verrilli replied that it certainly "casts a serious cloud" over those actions.
Justice Ruth Bader Ginsburg noted that when the Constitution was written, senators traveled "by horseback" to the Capitol, sitting for a few months of continuous sessions, and then returning home for six or nine months. Today there are no such long-running recesses.
Justice Elena Kagan pointed out that presidents of both political parties "have used this clause as a way to deal with ... congressional intransigence" over appointments. She acknowledged that "there's no such thing, truly, as congressional absence anymore," and in light of that fact, wondered "whether we're dealing here" with an historical "relic."
Verrilli replied that the NLRB "going dark" is not an historical relic. "It may be true," he said, "as a matter of raw power that the Senate has the ability to sit on nominations for months and years at a time," without acting, but that is "100 miles from what the Framers would have expected."
"You are making a very aggressive argument in favor executive power," responded Justice Samuel Alito.
Verrilli answered that the recess appointment power may act as a "safety valve" in some situations of intransigence. Pointing to the Federalist Papers, he maintained that "what the Framers were most concerned about was that Congress... [would] amass authority and drain authority and energy from the Executive." The Executive branch, in this case, he said, is simply arguing to maintain "the status quo." The branches have reached "a stable equilibrium that has emerged over the course of this country's history," said Verrilli, and the court should not disturb that equilibrium.
That comment earned a pointed response from Justice Stephen Breyer.
"I can't find anything [in the briefs] that says the purpose of this clause has anything at all to do with political fights between Congress and the president," Breyer said.
Verrilli definitely took the major pounding on Monday, although lawyer Noel Francisco, challenging the recess appointments, was hardly unscathed. Francisco opened his argument telling the justices that the president's position "eviscerates" the Senate's advice and consent power on nominations.
Justice Alito interrupted: "Suppose we think" the language in the Constitution is on your side, "but that there is a 200-year-old consistent practice ... going back to Washington" and an agreement between the president and the Senate that the language "actually means something else. What would we do in that situation?"
Several of the justices chimed in on this point. Justice Breyer asked how it could be that thousands of recess appointments over more than two centuries of time were unconstitutional.
Chief Justice Roberts wondered if there is any limit to the Senate's power. Can the Senate say, "We are never in recess?" Francisco shot back, "I think the answer is, yes, they could do that."
Last to argue on Monday was Miguel Estrada, representing 44 Republican senators. There was more than a little irony in his argument on behalf of senatorial prerogatives, in view of the fact that his appeals court nomination died in part because of Democratic intransigence during the George W. Bush Administration.
Still, Estrada told the justices that what the recess appointments case is about is "who gets to decide whether the Senate is in recess: the Senate or the President?" The answer to that question, he said, is that it is the Senate that gets to arrange its own affairs, especially when dealing with presidential appointments. And the reason for that, he maintained, is that the Constitution gives the Senate "absolute veto power" over nominations.
In the very short term, the Supreme Court's eventual answer to the recess appointment question will have limited effect. After all, the Democratically controlled Senate abolished the filibuster in November, making confirmation of the president's appointees subject to a majority vote.
But should the Republicans win control of the Senate in 2014, the Senate would confirm only those nominations the Republican majority would allow to come up for a vote. And the president's only check on that power to hold up his nominees would be recess appointments.
Over the course of time, both parties have sought to use the recess appointment power when they controlled the White House. Now it is up to the Supreme Court to determine whether that power will be a relic or reality.