The US Supreme Court appeared to be preparing Monday to limit the president’s power to appoint high-level judges and officials while Congress is in recess.
By law, the president has the right to choose the nominees and lawmakers have the right to offer “advice and consent.”
But the constitution allows the president to forego the approval process if the nomination comes while Congress is in recess.
The top court is examining just how and when the president can make use of that clause.
The nine justices to the Supreme Court, themselves chosen by the president, considered three appointments to the National Labor Relations Board made by Barack Obama on January 4, 2012, when the Senate was not meeting.
In this ideologically charged issue, Republican opponents to Obama contested the validity of the nominations, saying they were made on the sly in order to block the Senate’s right to oppose them.
They accuse the White House of overstepping its authority in violation of the constitution, arguing these recess appointments are only allowed during official recesses.
During a hearing that lasted an hour and a half, even the most left-leaning judges seemed to agree Obama had overstepped his authority.
The case reached the top court thanks to a lawsuit by the Noel Canning company, which contested the legitimacy of Obama’s appointees after the NLRB ruled against them in a labor dispute.
The Washington state company had support at the high court from a lawyer of the top Republican in the Senate, minority leader Mitch McConnell.
“The language (of the constitution) supports” Obama’s challengers, said progressive justice Stephen Breyer, adding it “is a political issue, not a constitutional issue.”
The question focuses on how to determine whether the Senate is in recess. Does that include any time the Senate is not actively working or only when it officially declares a break?
Justice Elena Kagan, former solicitor-general under Obama, said it “really is the Senate’s job to determine whether it’s in recess or not.”
Obama administration lawyer Donal Verrilli argued that interpreting the law as Republicans have argued “would repudiate the legitimacy of thousands of appointments going back to George Washington.”
But the precedent argument didn’t seem to sway ultra-conservative Antonin Scalia, who asked: “What would you do when there’s a practice that flatly contradicts the Constitution?”
“What would prevail,” he wondered, if the Constitution laid out a rule clearly, “and the practice for 200 years did something else?”
Kagan, weighing in on the issue of political partisanship, wondered whether the nominations in question were made “not due to Congressional absence but to Congressional intransigeance.”
The Supreme Court will give its decision by late June.
In late November, the Democratic majority in the Senate eliminated the minority party’s nearly unlimited powers of blocking nominees by lowering the threshold necessary to confirm them.
The Obama administration has complained that a large number of its judicial nominees had been held up in the confirmation process, leaving many vacancies unfilled.
[Image via Agence France-Presse]