Supreme Court Turns Skeptical Eye On Obama's Appointment Power

by
Reuters
A majority of the justices on the U.S. Supreme Court signaled a willingness on Monday to deliver a blow to President Barack Obama's ability to fill senior government posts without Senate approval, raising the possibility of a shift in the balance of power between the White House and Congress.

A majority of the justices on the U.S. Supreme Court signaled a willingness on Monday to deliver a blow to President Barack Obama's ability to fill senior government posts without Senate approval, raising the possibility of a shift in the balance of power between the White House and Congress.

Most of the nine justices expressed skepticism about so-called recess appointments made by Obama to the National Labor Relations Board (NLRB) in 2012, although it was not clear how broadly the court would rule.

A decision was expected by late June in the case in which soda bottler Noel Canning Corp is contesting an NLRB ruling against it, with a win for the Yakima, Washington-based company likely in its challenge to the recess appointments' validity.

At issue is the president's ability to make appointments while the Senate is in recess and what exactly constitutes a recess. The Supreme Court could decide the Noel Canning case in various ways, but even a narrow ruling against the government could be bad news for Obama in the last two years of his term.

The Senate is presently controlled by the Democrats, but Republicans could win control in November's elections. That would give them the power to reject Obama appointments outright, but also give them more sway over when to declare recesses.

Obama used his recess appointment power to name three members to the five-member NLRB in January 2012. Presidents of both parties have made many such appointments of officials who otherwise would have had difficulty winning Senate confirmation.

Republicans and business interests have long been eager to prevent Democratic presidents from appointing pro-labor members to the board. These interests were particularly outraged at Obama naming the three NLRB members while the Senate was not conducting business, but was not technically in a recess.

MCCONNELL ATTENDS ARGUMENTS

Kentucky Senator Mitch McConnell, the Republican leader of the Senate, has intervened in the case in support of Noel Canning. He was in the courtroom on Monday, as was White House Counsel Kathryn Ruemmler.

Although the legal arguments focus on the meaning of the recess appointment clause of the U.S. Constitution, at least one justice appeared to see the dispute as primarily political.

Justice Stephen Breyer said the Constitution clearly envisioned that appointments had be agreed upon by both the president and Congress. "Now that's a political problem, not a constitutional problem" if the two sides disagree, Breyer said.

Despite apparent misgivings about whether the courts should be deciding such an issue, justices from both sides of the ideological divide expressed skepticism about the administration's use of the recess appointment power.

Justice Elena Kagan, appointed to the court by Obama in 2010, was one of those critical of Solicitor General Donald Verrilli's legal arguments on the administration's behalf.

Some of Verrilli's arguments seemed to confirm that "it's really the Senate's job to determine whether they're in recess," Kagan said.

Chief Justice John Roberts seized upon a similar theme by defending the right of senators to object to appointments they don't like. "They have an absolute right not to confirm nominees that the president submits," he said.

The administration, he said, is attempting to use the recess appointments clause "as a way to combat that intransigence."

"EQUILIBRIUM" CITED

Verrilli's defense was that the way the recess appointments clause has been used over the years has changed in an effort to create a "stable equilibrium" between executive branch and congressional power.

If a majority of justices were to buy that argument, the administration could still lose on a narrower ground, but the recess appointment power would not be entirely disabled. Monday's argument indicated that, although there could be a clear majority to rule against the administration on that narrow ground, some justices might be willing to go further.

The case began as a complaint in 2010 by Teamsters Local 760 accusing Washington state bottling company Noel Canning of reneging on a verbal agreement concerning a new collective bargaining agreement.

The company won an unexpected victory in the U.S. Court of Appeals for the District of Columbia Circuit in January 2013 by convincing the judges that appointments made by Obama to the board were unconstitutional because the Senate was technically not in recess.

If Noel Canning wins its case, the practical fallout for the NLRB would be limited. In July, a Senate deal paved the way for the confirmation of five board members, marking the first time in a decade that the board had a full complement.

If the bottler prevails, those members would have to re-examine board decisions made by the contested recess appointees. Though they made more than 1,000 case determinations, the NLRB would likely only reconsider just over 100 which were appealed in federal courts, according to agency data.

The board went through the same process when the Supreme Court in 2010 invalidated hundreds of decisions that were made by just two board members, short of the required quorum. Roughly 100 of those were "looked at anew" once the board had a third member, said former NLRB Chair Wilma Liebman.