Skip to comments.Breaking: Supreme Court to review Obama recess appointments
Posted on 06/24/2013 8:07:55 AM PDT by SeekAndFind
It won’t be for a while, as this session of the Supreme Court will come to an end this week with the release of its most controversial decisions of the term. However, next year, the court will hear arguments on what constitutes a recess, and how much power the President has to make appointments without the advice and consent of the Senate:
President Obama’s recess appointments to a federal agency– made without Senate confirmation– will be reviewed by the Supreme Court, a major constitutional test of executive power. …
The case sets up a high-stakes Supreme Court fight between the other two branches of government. Oral arguments will be held in public session later this year or early next.
This was inevitable, since the White House made it clear that it would not accept the decision of an appellate court that not only struck down Barack Obama’s appointments to the NLRB (and Richard Cordray to the Consumer Financial Protection Bureau), but also severely limited recess-appointment power overall. A second appellate decision didn’t go quite as far in May, but still negated the NLRB’s work since those appointments.
The surprise, if there is one, is the delay in the Supreme Court’s acceptance and consideration of the case. The Obama administration appealed to the Supreme Court in March after the first decision, and the White House has obstinately refused to recognize the legal implications of the decision on the NLRB’s work throughout 2012. That creates a lot of confusion about compliance issues, which would seem to argue for rapid consideration rather than wait for months or perhaps more than a year for clarification.
Does this hint that the court will pull back a little from the first appellate decision to severely restrict the definition of recess appointments? I’d be careful about making that assumption. If the court wanted to endorse that definition, they could have declined to hear the case, which would have left that as precedent — albeit a relatively weak precedent. They also may want to strengthen the precedent by having the top court issue a definitive opinion, and with the obvious constitutional issues at play — especially in the checks and balances between the legislature and executive branches on agency law — the court may have decided that they cannot avoid the question. Other appellate and district court decisions have muddied the waters on this point as well, so clarity will be appreciated. If they wanted to redefine the appellate decision, that would argue for emergency consideration; for now, the appellate decision stands.
This is one of those executive-legislature fights that traditionally both have sought to keep out of the courts for fear of ending up with a black-and-white decision that allows for no ambiguity (executive privilege is another). It’s difficult to see the Supreme Court deciding that the executive branch can determine better than the legislature when the latter is in or out of session, though This White House — and those that succeed it — will probably end up regretting the obstinacy that pushed them to have the Supreme Court definitively rule on this issue.
Chief Justice Roberts will rule that the appointments are a “tax.”
Because Congress was in recess for earlier Presidents, it wasn't when Obama made the appointments.
Congress alone gets to determine when it is in recess, but President Obama declared them in recess over a long weekend and made the appointments. That is what this case is about.
What a job. Work a couple months and have 10 off. Opposite of a teacher.
If I recall correctly “recess” appointments were previously made while Congress was actually in recess, and were subject to apporval when they reconviened.
Otherwise just wait for every recess and appoint who you want.
And ever one of their decisions/opinions can be or will be challenged.
Seems like an open and shut case to me.
I'm still shaking my head at that one. Bet the decision on Marriage come out on the anniversary of that decision.
you do know what oabma did right?
Make appointments unlike any other past Presidents
what a smart constitutional professor, ARF
RE: What difference does it make? Hell just blackmail Roberts again.
What is there to blackmail? does anybody know something about Justice Roberts that most of us don’t?
Send in the Federal Marshals.
I think this is going to fail into one of those “the Senate can make it’s own rules” decisions and rule that they were illegal appointments.
It's not really a test of executive power. The president may make appointments when the Senate is in recess. The Senate was not in recess therefore the appointments need confirmation before they can take on their position. Obama was wrong in this.
Roberts has clearly been compromised via NSA/DHS/CIA/FBI/whatever other Orwellian groups are out there.
I suspect a bit of his dubious behavior can be traced to his mysterious, solitary "vacations" to Malta.
I still remember their ruling that Obamacare and forced participation in it is just fine and dandy and American as apple pie and baseball.
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.These appointments were not to fill a vacancy, they were newly created positions IIRC. The language is clear "that may happen" means there is a person in the position and suddenly leaves, dies, or otherwise can not perform their duties in that position, then the President can make an appointment to fill that sudden vacancy. I would argue past recess appointments as well if the position was open when the Senate was in session and the President waited to fill it during a recess.
But, he said it was adjourned, so it was. The Emperor had spoken.
As if Congress would know if they were adjourned or not...that's why we need obama. He's the only one who can know.
I don't see why the One lets the SC tell him anything. They should learn how to read the constitution.
“Just for arguments sake...why were recess appointments fine for earlier Presidents but not for Obama?”
Just a wild guess, those recess appointments were made when the Senate was, in actual fact, in recess. But that’s just a guess.