Justices to Decide the Scope of Recess-Appointment Authority

Constitutional case tests presidents' power to appoint.

, The National Law Journal

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The justices would not have decided the two history-ladened questions decided by the D.C. Circuit, Hartnett said, if they affirmed by saying the following: If the Senate has somebody on the floor who gavels the Senate in and out of session and says the Senate is in session, then it is in session and these particular appointments are invalid. "But to reverse, they've got to reach all three questions raised," he said. "You need all three to make the appointments valid."

No one is certain what the justices will do in the end. The D.C. Circuit decision, hailed by some for its originalist approach, could appeal to the high court's two originalists, justices Antonin Scalia and Clarence Thomas. But they also are rather strong supporters of executive power. The administration's arguments that history and practice, as well as text, matter here could draw such justices as Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor.

"This likely will be decided by Kennedy and Roberts," Gerhardt predicted. "But most of the justices will have to grapple with what Pandora's box they open if they go one way or another."

Contact Marcia Coyle at mcoyle@alm.com.

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