SCOTUS to hear arguments today regarding president’s power to appoint during Senate recess

January 13, 2014

Monday, January 13, 2014

Good morning:

The SCOTUS will be hearing arguments today regarding the president’s power to appoint people, whose appointments are normally subject to the consent of the Senate, when the Senate is not in session.

Article 2, Section 2 of the Constitution provides:

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.

Senate Republicans precipitated this battle by abusing the filibuster power to block appointments to vacancies on the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CPFB) and by scheduling pro forma or brief meet-and-greet-see-you-next-time-ha-ha “sessions” to further frustrate and prevent the president from appointing people to positions in his government while the Senate is in recess.

PBS summarizes what is at stake:

Senate Republicans’ refusal to allow votes for nominees to the National Labor Relations Board and the new Consumer Financial Protection Bureau led the president to make the temporary, or recess, appointments in January 2012.

Three federal appeals courts have said Obama overstepped his authority because the Senate was not in recess when he acted. The Supreme Court case involves a dispute between a Washington state bottling company and a local Teamsters union in which the NLRB sided with the union. The U.S. Circuit Court of Appeals for the District of Columbia overturned the board’s ruling, and hundreds more NLRB rulings could be voided if the Supreme Court upholds the appeals court decision.

More broadly, if the justices ratify the lower court ruling, it would make it nearly impossible for a president to use the recess power. Under such a ruling, presidential nominees could be blocked indefinitely when the president’s party does not control the Senate.

Three federal appeals courts have upheld recess appointments in previous administrations.

By a simple majority vote recently, the Democrats voted to change the Senate rules to limit the ability of the minority party to block most presidential nominees, spurred by GOP efforts to block three Obama appeals court nominees.

Yet the issue still remains for non-judicial appointments.

What do you think.


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