U.S. Supreme Court

Is appointments clause a 'historic relic'? SCOTUS appears ready to curb presidential power

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The U.S. Supreme Court on Monday appeared ready to curb the president’s authority to make recess appointments during short breaks in Senate proceedings.

President Obama appeared to be on the losing side as the solicitor general claimed the president had the constitutional authority to make three appointments to the National Labor Relations Board in January 2012, report the New York Times, the Wall Street Journal (sub. req.), the Washington Post and SCOTUSblog. At the time, the Senate was holding pro forma sessions every three days in an effort to block recess appointees.

The clause says “the president shall have power to fill up all vacancies that may happen during the recess of the Senate.”

Justice Elena Kagan said during oral arguments that it’s the Senate’s job to determine when it’s in recess. The recess appointments clause, she said, may be a “historic relic” from “the horse and buggy era,” when presidents needed the authority to fill vacancies because lawmakers could not return on short notice from a recess.

SCOTUSblog calls a comment by Justice Stephen G. Breyer “perhaps the most unfortunate moment for presidential authority.” “I can’t find anything,” Breyer said, “that says the purpose of this clause has anything at all to do with political fights between Congress and the president.”

The Post and the Times outline three questions for the court: Is the Senate in recess when it says it isn’t? Does the clause require the vacancy to arise during the recess, or can it exist during the recess? Can the appointment be made only during the once-a-year recess between formal sessions?

The case is National Labor Relations Board v. Canning.

Prior coverage:

ABA Journal: SCOTUS ponders whether the president can make appointments while Congress is out

ABAJournal.com: “SCOTUS to consider when the president may make recess appointments”

ABAJournal.com: “Obama’s recess appointments to the NLRB are struck down by the DC Circuit”

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