Breaking: Supreme Court to review Obama recess appointments

posted at 10:03 am on June 24, 2013 by Ed Morrissey

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.

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Hmmmm….

OmahaConservative on June 24, 2013 at 10:06 AM

Let’s review that “eligibility for office” thingy for our child tyrant while you’re at it.

Mmm-kay?

viking01 on June 24, 2013 at 10:11 AM

Esit question: What does the WH have on Judge Roberts?

davidk on June 24, 2013 at 10:12 AM

Don’t get your hopes up, given past rulings they’re probably just going to back him up.

Red Cloud on June 24, 2013 at 10:13 AM

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.

With Brave, Brave Sir Roberts on the court, I’d be careful about making that assumption, as well.

Il Douche probably has nothing to fear.

DRayRaven on June 24, 2013 at 10:14 AM

The law is irrelevant….

wytshus on June 24, 2013 at 10:14 AM

Recess appointments are a tax.

Sincerely,
Johnny R.

hillsoftx on June 24, 2013 at 10:15 AM

Are they releasing any decisions today?

gophergirl on June 24, 2013 at 10:15 AM

Blame Obama!

cmsinaz on June 24, 2013 at 10:17 AM

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.

BLAME OBAMA! Clarity on this is good, but it’s Obama’s fault that….we’re getting clarity on this because…..it could be bad for future Presidents that they can’t do things willy-nilly so….BLAME OBAMA!

segasagez on June 24, 2013 at 10:17 AM

Esit question: What does the WH have on Judge Roberts?

davidk on June 24, 2013 at 10:12 AM

Judging by Roberts odious perpetual smirk, it might well involve hamsters and duct tape.

ElectricPhase on June 24, 2013 at 10:19 AM

I’m a bit confused about this. I thought if someone was installed as a recess appointment, they then had to be confirmed by the senate later. What defines when they have to go through the process, the President’s term or the seating of the next Congress?

Cindy Munford on June 24, 2013 at 10:20 AM

I have learned my lesson, and will wait for Resist We Much to release his/her (? sorry) comments on the decision before freaking out or rejoicing, whichever way the MSM and HotAir bloggers spin it.

cptacek on June 24, 2013 at 10:21 AM

Exit question: What does the WH and the NSA and the IRS and Holder and Homeland Security and the Vice Squad have on Judge Roberts?

davidk on June 24, 2013 at 10:12 AM

FIFY

viking01 on June 24, 2013 at 10:21 AM

Judging by Roberts odious perpetual smirk, it might well involve hamsters and duct tape.

ElectricPhase on June 24, 2013 at 10:19 AM

Something to do with the strange adoptions out of Ireland, is my bet.

cptacek on June 24, 2013 at 10:21 AM

I’m a bit confused about this. I thought if someone was installed as a recess appointment, they then had to be confirmed by the senate later. What defines when they have to go through the process, the President’s term or the seating of the next Congress?

Cindy Munford on June 24, 2013 at 10:20 AM

That is true. Congress is trying to avoid the President being able to make any recess appointments by claiming that they’re never in recess.

segasagez on June 24, 2013 at 10:22 AM

Obama must believe that he as stacked the court with enough of his ideological stooges to get a ruling in his favor . . . not to mention the fact that Roberts was totally intimidated by him.

rplat on June 24, 2013 at 10:26 AM

That is true. Congress is trying to avoid the President being able to make any recess appointments by claiming that they’re never in recess.

segasagez on June 24, 2013 at 10:22 AM

Well, that is the question, isn’t it? Can the President declare that the Congress is in/out of session, or does Congress get to determine that?

cptacek on June 24, 2013 at 10:26 AM

Everyone, liberal and Conservative alike needs to have this decided on once and for all. Doesn’t matter what party you belong to, this $hit will keep happening no matter who is in office if they don’t rule on it now.

Johnnyreb on June 24, 2013 at 10:27 AM

The U.S. Constitution is nothing more than a six-pack of squeezable Charmin to the Obama regime.

Dear Lord, please free us from this nascent tyrant (and his hideous bride, too) – he’s headed for Africa, you know. Can you figure out how to leave him there? Amen.

turfmann on June 24, 2013 at 10:29 AM

Well, that is the question, isn’t it? Can the President declare that the Congress is in/out of session, or does Congress get to determine that?

cptacek on June 24, 2013 at 10:26 AM

That’s the question, and it’s good that the Supreme Court will answer it. It’s abused by both parties and both branches for so long, it’s good that at least this one issue will finally be put to rest.

segasagez on June 24, 2013 at 10:31 AM

Don’t get your hopes up, given past rulings they’re probably just going to back him up.

Red Cloud on June 24, 2013 at 10:13 AM

You mean, like they did on Heller?

This SCOTUS seems to operate on the principle that the Executive Branch, and other branches of government, down to localities, have considerable latitude of action so long as they do not violate the letter of the Constitution. This is a more concrete argument than one based upon its “spirit“.

It also means that the government may operate in the principle of “it is legal unless it is expressly forbidden“.

Hence, the ruling on ObamaCare fees being legal as long as they are treated and levied as taxes. The One’s insistence up front that they were not speaks less of his habitual duplicity, than it does of his ignorance of the law. (The first is expected of a lawyer; the second indicates somebody who should have slept through fewer classes in law school.)

In this case, we have situation in which the Executive Branch has repeatedly used a definition of a term and procedure (“recess”) from the Constitution in a way which does not square with either its letter or its common procedural usage developed over the 220+ years of its existence. In such cases, this court has tended to rule in favor of the “traditional interpretation”.

My guess is that this case in scheduled for the next session to give the clerks time to carefully research previous similar cases, and prepare a brief that leaves no doubt as to the correct interpretation of the passage.

The reason being that I suspect the court expects that when they rule to uphold one or both of the lower court decisions, The One will tell them they are wrong, and ignore the ruling. At times like that, you want all the i’s dotted, and all the t’s crossed.

I think you can figure out why.

clear ether

eon

eon on June 24, 2013 at 10:31 AM

segasagez on June 24, 2013 at 10:22 AM

Yep, I know that, both sides playing silly games to get what they want. But even if they had been in recess, these people would have to come before the Senate eventually, I just can’t remember the time frame. I’m going to go look it up.

Cindy Munford on June 24, 2013 at 10:32 AM

Esit question: What does the WH have on Judge Roberts?

davidk on June 24, 2013 at 10:12 AM

The NSA must have something nasty on him.

dogsoldier on June 24, 2013 at 10:33 AM

SCOTUS remanded Fisher to a lower court. That was the affirmative action case.

workingclass artist on June 24, 2013 at 10:34 AM

Article II, Section 2 of the U.S. Constitution, which states:

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.

So, these guys should have had to be confirmed after the new Congress seated this year. Recess appointments are for emergency appointments not to stack the deck.

Cindy Munford on June 24, 2013 at 10:35 AM

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.

So, this case on recess appointments to the NLRB won’t be decided until June of 2014, or more than TWO YEARS after the actual recess appointments. Will the Supreme Court (and particularly Chief Squish)have the cojones to throw out two years of NLRB decisions with the stroke of a pen next year, after the debacle last year on the health care law?

If the decision was made THIS year, there wouldn’t be the pressure of an election–what will they do next year, when both parties could use this as a campaign issue for the Congressional elections?

If the decision of the appellate court stands for now, what is the status of any rulings made by Obama’s “recess” appointments to the NLRB? Will they continue to make rules, knowing that anything they decide could be struck down next year?

Steve Z on June 24, 2013 at 10:38 AM

So, these guys should have had to be confirmed after the new Congress seated this year. Recess appointments are for emergency appointments not to stack the deck.

Cindy Munford on June 24, 2013 at 10:35 AM

Yes, they should be for emergency appoints only. Likewise, each appointment should also get a vote. Neither are these things are happening.

segasagez on June 24, 2013 at 10:38 AM

Gasoline is primarily sold in 3 grades. Additionally, dirt contains particles of sand and organic material.

Therefore, a simple reading of the law makes it quite clear the Executive Branch has any authority it deems itself to have.

~Roberts

BobMbx on June 24, 2013 at 10:39 AM

So, these guys should have had to be confirmed after the new Congress seated this year. Recess appointments are for emergency appointments not to stack the deck.

Cindy Munford on June 24, 2013 at 10:35 AM

Yes, and that’s why Obama had to renominate all of them in January, which he did and the Senate has thus far refused to consider.

The question isn’t whether they’d be legal now if the Senate confirmed them; it’s whether they were legal in 2012. If not, then all of the NLRB decisions in 2012 will be vacated, and they would no longer be on the NLRB (which they are at the moment). The 11th circuit ruling would mean that no President can even make recess appointments in the future unless the appointment takes place in formal recess — not just breaks in the legislative schedule, such as in August. That’s a huge change from the way recess appointments have been used over the last few decades.

[Edited afterward to fix first "NLRB" -- Ed]

Ed Morrissey on June 24, 2013 at 10:42 AM

A nation of MEN…..not law.

#whatwehavebecome

PappyD61 on June 24, 2013 at 10:45 AM

Ed Morrissey on June 24, 2013 at 10:42 AM

Thanks for the clarification. Just another example of how much better our lives would be if our “leaders” adhered to the law instead of doing everything they can to undermine or waltz around it. Why hasn’t the Senate brought up the appoints, the Democrats own that branch?

Cindy Munford on June 24, 2013 at 10:47 AM

That’s a huge change from the way recess appointments have been used over the last few decades.

Ed Morrissey on June 24, 2013 at 10:42 AM

But it sounds like that is the way the Constitution meant it to be. If the Congress/President wants to change the Constitution, then there is an Amendment process that should be followed. (The Pres actually has no say in the Amendment process, but he can usher it through Congress and cheer-lead it).

cptacek on June 24, 2013 at 10:48 AM

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

Just out of curiosity, does anyone think that Obama will accept the decision of SCOTUS if it too strikes down Barry’s appointments to the NLRB? Because there are zero indications that our current self-styled God-King will obey any law that he disagrees with.

Physics Geek on June 24, 2013 at 10:50 AM

Where is our HotAir Legal Correspondent Crr6?

portlandon on June 24, 2013 at 10:51 AM

I hear Benedict Roberts wanted to be a singer but the stage name “Vanity” was already taken.

viking01 on June 24, 2013 at 10:53 AM

Where is RWM, that is whom I’m waiting on. She can put all this legal mumbo jumbo into plain english for us all to better comprehend. I was over on Scotusblog and it’s all gibberish to me.

D-fusit on June 24, 2013 at 10:54 AM

From a 1,000 foot view, this looks like an easy call.

If a President can make recess appointments during a “vacation” even when the Senate is holding pro-forma sessions, then why would he not be able to make them on a long weekend or even an overnight break?

If the SC allows these appointments to stand it pretty much shreds the advice and consent duty of the Senate.

Article II, Section 2 of the U.S. Constitution, which states:

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.

This is where the issue is. The President is deciding when they are not in session to make his appointments, but then using a different set of rules to define the “end of the next session” that would require them to be renominated.

If he appoints them during pro-forma sessions, then they should only last until the official end of the session or the next pro-forma session.

weaselyone on June 24, 2013 at 11:01 AM

CJ Roberts will find that recess appointments are a tax and are, therefore, Constitutional.

Bitter Clinger on June 24, 2013 at 11:02 AM

“. . . .be confirmed by the Senate later. . .”

Kinda like enforcing the borders after amnesty.

TimBuk3 on June 24, 2013 at 11:03 AM

Can a person be appointed by recess appointment 2 times consecutively?

weaselyone on June 24, 2013 at 11:04 AM

Esit question: What does the WH have on Judge Roberts?

davidk

Nothing. Absolutely nothing.

xblade on June 24, 2013 at 11:05 AM

Can a person be appointed by recess appointment 2 times consecutively?

Can anyone legally prevent Barry from doing so? If he wanted to, his will be done. But then, there are so many of his fellow travelers, replacements are plentiful.

hawkeye54 on June 24, 2013 at 11:11 AM

Just out of curiosity, does anyone think that Obama will accept the decision of SCOTUS if it too strikes down Barry’s appointments to the NLRB? Because there are zero indications that our current self-styled God-King will obey any law that he disagrees with.

Physics Geek on June 24, 2013 at 10:50 AM

He may accept the decision and then just appoint a similar replacement. The name and face may change but the ideology and agenda remain the same.

hawkeye54 on June 24, 2013 at 11:14 AM

Exit question: What does the WH have on Judge Roberts?

davidk

Nothing. Absolutely nothing.

xblade on June 24, 2013 at 11:05 AM

Not even the Che Guevara t-shirt Benedict wears under the robe?

viking01 on June 24, 2013 at 11:19 AM

Esit question: What does the WH have on Judge Roberts?

davidk on June 24, 2013 at 10:12 AM

Gay.

alwaysfiredup on June 24, 2013 at 11:24 AM

If anything, SCOTUS has proven itself worthy of our Framers worst fears.

We now have an unelected branch of government, outside the people’s control, deciding measures of significant importance to our country.

They are not guided by the law, but largely by ideology, with the game being for each president to place jurists of similar political philosophy on the court to ingrain and bless their executive actions.

This is pure and simple oligarchy which has resulted in a philosophical hegemony that undercuts our constitution and has transformed this republic into a shadow of its former self.

We are a lesser nations because of SCOTUS, who has become nothing but a tool of despots.

Marcus Traianus on June 24, 2013 at 11:24 AM

Are they releasing any decisions today?

gophergirl on June 24, 2013 at 10:15 AM

They released a few (all 5-4 conservative-v-liberal decisions except as noted):

- FDA regulations prohibiting unapproved drug label changes trumps state law allowing for design-defect claims based on what the state thinks the label should read.

- For an employer to be sued for discrimination based solely on the actions of an employee/supervisor (even if the employer takes steps to stop the discrimination), said employee must have been granted the power by the employer to take tangible employment action (a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits) with regard to the victim.

- Retaliation claims based on Title VII of the Civil Rights Act must be proven on the traditional “but for” standard (i.e., that an employer would not have taken an adverse employment action but for an improper motive), not a “causation” standard (that an improper motive was one of multiple reasons for an adverse employment action).

- By a 7-2 decision (Scalia and Thomas dissenting), federal sex offenders who completed their sentences before the federal sex registry came about must register on pain of criminal prosecution.

- By a 7-1 decision (Ginsburg dissenting, Kagan recused), Fisher v University of Texas goes back to the 5th Circuit with instructions to require the university prove that only discrimination based on race can allow it to be “diverse”.

Steve Eggleston on June 24, 2013 at 11:25 AM

No faith in the SCOTUS to make the right decision anymore.

itsspideyman on June 24, 2013 at 11:26 AM

Esit question: What does the WH have on Judge Roberts?

davidk

Nothing. Absolutely nothing.

xblade on June 24, 2013 at 11:05 AM

Sure.

“The truth is that it was not limited to AP, and not limited to just number identification and call duration, but was an extensive and active wiretapping operation that included every reporter’s telephone conversations, landline and cell, text messages from their personal and business cellular telephones and other electronic devices. The primary focus is on the press gallery, where everything was monitored in real time.”

“Not only were the communications of reporters compromised, so were the private communications of congressmen and their aides. Listen to what I am saying,” he stressed, “the operation was much larger than anyone can imagine. Recordings, actual voice recordings, were turned over to the Obama administration, along with transcripts of texts, other communications and contacts.”

http://www.shtfplan.com/headline-news/dhs-insider-warns-its-already-begun-youre-seeing-it-now_06202013

davidk on June 24, 2013 at 11:26 AM

Where is RWM, that is whom I’m waiting on. She can put all this legal mumbo jumbo into plain english for us all to better comprehend. I was over on Scotusblog and it’s all gibberish to me.

D-fusit on June 24, 2013 at 10:54 AM

Probably taking tea. It is the 4 o’clock hour in Britain.

Steve Eggleston on June 24, 2013 at 11:28 AM

Majority Opinion: We don’t care. Obama is awesome.

SagebrushPuppet on June 24, 2013 at 11:30 AM

There will be more opinions tomorrow, and probably at least one more day based on the fact it wasn’t Roberts who made the announcement regarding tomorrow.

Steve Eggleston on June 24, 2013 at 11:35 AM

Thanks for the clarification. Just another example of how much better our lives would be if our “leaders” adhered to the law instead of doing everything they can to undermine or waltz around it. Why hasn’t the Senate brought up the appoints, the Democrats own that branch?

Cindy Munford on June 24, 2013 at 10:47 AM

For the same reason they didn’t take up the appointments last year.

Steve Eggleston on June 24, 2013 at 11:37 AM

cptacek on June 24, 2013 at 10:21 AM

She.

davidk on June 24, 2013 at 11:38 AM

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.

My guess is the hope among Roberts and his fellow Lawgivers-In-Black would be that the Senate would confirm the two-time recess appointees between March and now. Then, they would be able to weasel out of ruling on the instant case while hamstringing future Presidents (specifically, Republicans).

Steve Eggleston on June 24, 2013 at 11:41 AM

No one has ever accused King Barry of being the sharpest tool in the shed.

GarandFan on June 24, 2013 at 11:44 AM

Well, that is the question, isn’t it? Can the President declare that the Congress is in/out of session, or does Congress get to determine that?

cptacek on June 24, 2013 at 10:26 AM

Usually, it’s Congress, but the President does have the power to adjuorn Congress if they disagree on the timing of adjournment. That hasn’t been claimed…yet.

Steve Eggleston on June 24, 2013 at 11:46 AM

She.

davidk on June 24, 2013 at 11:38 AM

:) Thanks!

cptacek on June 24, 2013 at 11:49 AM

Steve Eggleston on June 24, 2013 at 11:37 AM

Do they need 60 or a simple majority? I assume 60.

Cindy Munford on June 24, 2013 at 11:49 AM

Do they need 60 or a simple majority? I assume 60.

Cindy Munford on June 24, 2013 at 11:49 AM

Until Dingy Harry fires the nuke, they still need 60. I’m guessing that, just like last year, he doesn’t want to die (electorally) on this hill.

Steve Eggleston on June 24, 2013 at 12:06 PM

Steve Eggleston on June 24, 2013 at 12:06 PM

They vote on next to nothing but still manage to produce a twelve hundred page piece of crap immigration bill. D.C. is less than useless.

Cindy Munford on June 24, 2013 at 12:14 PM

My drive-by take — it’ll get mooted.

The court took the case to force the administration to back down. It’ll never be heard. That’s why the timing looks so strange.

cthulhu on June 24, 2013 at 2:05 PM

Breaking – SC still in obama’s pocket, via NSA.

Schadenfreude on June 24, 2013 at 2:21 PM

Where is our HotAir Legal Correspondent Crr6?

portlandon on June 24, 2013 at 10:51 AM

At the rate her law career seemed to be moving, I assume she is now shortlisted for a federal judicial appointment.

slickwillie2001 on June 24, 2013 at 2:33 PM

Exit question: What does the WH have on Judge Roberts?
davidk

Nothing. Absolutely nothing.
xblade on June 24, 2013 at 11:05 AM

The proper question would be ..
“What is the WH willing to manufacture on Judge Roberts?”

Anything. Absolutely Anything.

FTFY.
/.

CaveatEmpty on June 24, 2013 at 3:34 PM

Gasoline is primarily sold in 3 grades. Additionally, dirt soil contains particles of sand and organic material.

BobMbx on June 24, 2013 at 10:39 AM

FIFY.

It’s soil until it gets on your clothes, then it is dirt.

Difficultas_Est_Imperium on June 24, 2013 at 9:17 PM

…Jokester Justice John…what will he do?

KOOLAID2 on June 24, 2013 at 10:10 PM