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From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.
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And I'm Melissa Block. Supreme Court justices from across the ideological spectrum voiced skepticism today about one way modern presidents have filled executive branch vacancies. Article 2 of the Constitution says the president shall have the power to fill up all vacancies that may happen during the recess of the Senate, but what if there is no recess? NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The Senate has never liked recess appointments, but has been unable to stop them. Indeed, presidents back to George Washington have made them. The battle between the two branches reached a new high in 2012 when Republicans, facing a 20-day mid-session recess, forced the conducting of super-short Senate session with no business conducted. Here, for example, is the session on January 6, 2012 with a near empty chamber.
(SOUNDBITE OF SENATE SESSION)
UNIDENTIFIED MAN: Senate will come to order. The clerk will read a communication to the Senate.
UNIDENTIFIED WOMAN: Washington D.C. January 6, 2012, to the Senate. Under the provisions of Rule 1, Paragraph 3 of the standing rules of the Senate, I hereby appoint the Honorable Jim Webb, a Senator from the Commonwealth of Virginia, to perform the duties of the chair, signed Daniel K. Inouye , President Pro Tempore.
UNIDENTIFIED MAN: Now, the previous order, the Senate stands adjourned until 11:00 a.m. on Tuesday, January 10, 2012.
TOTENBERG: That was it, the whole thing. 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 to the National Labor Relations Board, which had been unable to enforce the nation's labor laws because it lacked a quorum. Republicans challenged the appointments as unconstitutional, contending that the Senate had not been in recess.
Inside the Supreme Court today, Solicitor General Don Verrilli told the justices that the challenger's interpretation of the recess appointment 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.
Chief Justice Roberts: You don't suggest that the actions of these recess appointees would be invalid, do you? Answer: Well, it would certainly cast a serious cloud over those actions. Justice Ginsberg noted that when the constitution was written, senators traveled by horseback and were back home for six or nine months. Today, there are no such long-running recesses.
Justice Kagan: Going back to President Reagan, presidents of both political parties have used this clause as a way to deal with congressional intransigence over appointments. But with no long term congressional recesses now, she said, that makes me wonder whether we're dealing here with an historic relic. Solicitor General Verrilli replied that the NLRB going dark is not an historical relic. It may be true, he said, that as a matter of raw power, 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've expected.
Justice Alito: You're making a very aggressive argument in favor of executive power, that when the Senate fails to act on nominations, the president must be able to fill those positions. Answer: The recess power may act as a safety valve in some situations of intransigence. What the framers were most concerned about was that Congress would amass authority and drain authority from the executive. We have a stable equilibrium between the branches that has emerged during our history, and what we're arguing for is the status quo.
Justice Breyer: I can't find anything in the briefs that says the purpose of the recess appointment clause was to resolve fights between the branches. Verrilli definitely took the major pounding today, although lawyer Noel Francisco, challenging the recess appointments, was hardly unscathed. He told the justices that the president's position eviscerates the Senate's advice and consent power on nominations. After all, he argued, the Senate gets to make its own rules, not the president.
Justice Alito: Suppose we think that the language in the Constitution is on your side, but that there is a 200-year-old consistent practice going back to Washington and uncontested by the Senate that the language means something else. What do we do with that situation? Other justices chimed in, asking how are we supposed to conclude that thousands of recess appointments over time were unconstitutional.
Chief Justice Roberts wondered if there's any limit to the Senate's power, can it say we are never in recess: Replied Francisco: I think the answer is yes, they could do that that. Nina Totenberg, NPR News, Washington.