Supreme Court Skeptical of President's Recess-Appointments Argument

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Miguel Estrada
Miguel Estrada

Obama had appointed the three board members on Jan. 4, 2012. The Senate had adjourned immediately after the start of the second session of the 112th Congress on Jan. 3, 2012, but had agreed to reconvene for a series of three-day, pro forma sessions, "with no business conducted" between Jan. 3 and Jan. 23, 2012. The president viewed that period as a recess.

The D.C. Circuit held that "the Recess" of the Senate, for purposes of recess appointments, lies only between the biannual sessions of Congress. It also held that the only vacancies to be filled during the recess are vacancies that actually occur during the recess, and not existing vacancies.

The justices agreed to review those two issues and added a third at the request of Noel Canning: whether the brief pro forma sessions constituted a recess.

Regarding Scalia’s question about text versus longstanding practice, Verrilli argued that the practice gives meaning to the text. But he added that the text is not clear in this instance and its meaning has been subject to contention since the first days of the Republic.

He told the justices that the Constitution's framers were most concerned that Congress not amass too much power and that the executive needed fortification against that possibility. The recess appointments clause, he said, was the result.

However, Chief Justice John Roberts Jr. told him, "But the compromise they settled on in moving away from that is that the president will nominate and the Senate, if it so chooses, can confirm a nominee." Roberts added that the government seemed to be "latching onto" the recess clause as a way to combat Senate intransigence on appointments.

Justice Samuel Alito Jr. accused Verrilli of making "a very aggressive argument for executive power." Verrilli replied that he was arguing for the "status quo."

Meanwhile, Francisco argued that the government's position would eviscerate the advice-and-consent clause as an important check on executive power. The government would create "a unilateral appointment power available for every vacancy at virtually any time, with advice and consent to be used only when convenient to the President."

But Justice Ruth Bader Ginsburg told him that his argument "would destroy the recess clause. Under your argument, it is totally within the hands of the Senate to abolish any and all recess appointments."

Francisco agreed, explaining, "And that reflects the fact that the recess appointment power is a contingent one. It arises only when the Senate chooses to trigger it by ending its session and beginning its recess. So the Senate always has the power to prevent recess appointments." The president, he added, has a corresponding power to convene an emergency session if he thinks the Senate is being derelict in its duty to consider nominations.

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    Recess appointments are obsolete. With jet travel and instant telecommunications, the Senate is never unable to advise and consent -- barring catastrophes such as full-scale war, electomagnetic storm, major asteroid strike, etc. Besides, requiring presidents to confer with Senators before nominating appointees will appropriately assure the citizenry that communists and facists never get within 10 miles of real power.

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