SUPREME COURT – Justice Antonin Scalia on Monday tore into President Barack Obama’s use of recess appointments to staff government agencies when the Senate is unofficially on recess.
During oral arguments, Scalia shot back at an argument by U.S. Solicitor General Donald Verrilli that the Constitution’s recess appointments clause is ambiguous enough to validate Obama’s temporary appointments.
“It’s been assumed to be ambiguous by self-interested presidents,” Scalia said, to “oohs” and laughs in the court room.
Scalia argued emphatically that the text of the Constitution does not permit presidents to appoint individuals to government agencies during pro forma sessions — when the Senate technically gavels in and out to fulfill a constitutional requirement, but does not conduct any business. He suggested the power ought to be restricted to official recesses.
“Let’s assume I think the text is clearly against you,” the Reagan-appointed justice told Verrilli during a lengthy back-and-forth early in the arguments, saying a president would have to “ignore the Constitution” to justify recess appointments during pro forma sessions. (continue reading)
WASHINGTON — In an extended argument that contained large doses of history and practical politics, the Supreme Court on Monday seemed skeptical of the Obama administration’s contention that it had acted properly in bypassing the Senate to appoint several officials during a break in the Senate’s work.
Several justices seemed attracted to the relatively narrow argument that President Obama had acted during a break in the Senate’s work that was too brief to allow a recess appointment. Others spoke in favor of a much broader argument that would limit such appointments to recesses between sessions of Congress.
Much of the argument concerned how to reconcile the text of the Constitution with more than a century of tradition. On the one hand, as a federal appeals court in Washington ruled, the words of the Constitution can be read to allow a quite limited appointment power.
The constitutional provision at issue says that “the president shall have power to fill up all vacancies that may happen during the recess of the Senate.” The appeals court, leaning heavily on the phrase “the recess,” ruled that appointments may be made only during the recesses that occur between the formal, numbered sessions of Congress. The court added that the vacancies must have arisen during that recess.
Solicitor General Donald B. Verrilli Jr., representing the Obama administration, said presidents of both parties have made many appointments during breaks in sessions of Congress. Justice Antonin Scalia responded that the text of the Constitution was more important than contrary practice.
The case, National Labor Relations Board v. Noel Canning, No. 12-1281, arose from a labor dispute. The labor board ruled against a bottling company, saying it had engaged in an unfair labor practice by refusing to enter into a collective bargaining agreement. (link)
