By Frank James

Chief Justice John Roberts asked during arguments recently why President Barack Obama didn't use his power to make recess appointments when the Senate isn't meeting to fill vacancies in the administration. The president obliged days later with 15 of them, including one that conservatives find very objectionable.

Chief Justice John Roberts. (MANDEL NGAN / AFP/Getty Images)

President Barack Obama made 15 recess appointments over the weekend, using the power the U.S. Constitution gives presidents to fill vacant positions when Congress is in recess.

Article II, Section 2: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Like other presidents, Obama was reacting to opposition members of the Senate who have blocked conformation votes for his nominees.

In a press release, the White House laid out its case. An excerpt:

The 15 nominees President Obama intends to recess appoint have been pending for an average of 214 days or 7 months for a total of 3204 days or almost 9 years.

There's a bit of intriguing timing on these recess appointments which may only be a coincidence.

Just days before the administration's announcement, the U.S. Supreme Court heard a case involving the National Labor Relations Board in which Chief Justice John Roberts seemed to suggest that it was a no-brainer for the president to use his recess appointment power to take care of some of the problems caused by the vacancies.

Like at the NLRB. It has been operating with only two of five commissioners which has led to a legal challenge. New Process Steel LP has questioned the legality of an adverse ruling by the NLRB since, by law, the agency must have a quorum of three board members to make certain decisions.

After the government's lawyer, Neal Katyal, the deputy solicitor general, spent much of his time arguing, to skeptical justices, that the requirement for a quorum of three could be satisfied with two if you used his interpretation of the statute's language, Roberts chimed in:

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?
MR. KATYAL: The -- the recess appointment power can work in -- in a recess. I think our office has opined the recess has to be longer than 3 days. And -- and so, it is potentially available to avert the future crisis that -- that could -- that could take place with respect to the board.

Four days later, the administration announced its recess appointments. Again, not that the administration wasn't planning to do it anyway. But it certainly doesn't hurt to have the conservative chief justice provide you with a little political cover.

And that cover may be needed since the administration is taking flak for one of the 15 recess appointments especially, that of Craig Becker to the NLRB.

At the conservative Hotair.com blog, Ed Morrissey writes:

We got tons of e-mail this weekend when Barack Obama made 15 recess appointments once Congress left town, including the controversial Craig Becker to the National Labor Relations Board. This move should have surprised no one. Even though Democrats blasted George Bush for his recess appointments, especially John Bolton's appointment as UN Ambassador, Obama's need to kiss and make up to the unions made this entirely predictable.

Morrissey provides a link to and excerpt to an editorial from the conservative Washington Examiner:

Craig Becker is one radical dude. He claims management should be barred from National Labor Relations Board hearings on labor-management disputes, and he is a strong advocate of Card Check, the union bosses' proposal to do away with secret ballots in workplace representation elections. None of this should come as a surprise, as Becker is the former associate general counsel for the radical Service Employees International Union and has represented the AFL-CIO in court.

But Chief Justice Roberts did seem to be urging the president to make recess appointments, didn't he?

(H/T Think Progress's The Wonk Room blog for pointing out Roberts' comment.)

categories: Politics

1:37 - March 29, 2010