I know, I know: Didn’t we go through this once before? SCOTUS sounded skeptical after oral arguments on ObamaCare’s individual mandate too and we all know how that turned out. We’re setting ourselves up for heartbreak. Again.

One big difference between then and now, though, is that everyone assumed a ruling against the mandate would be no better than 5-4. Obama had four liberal justices in the bag for his position, as usual; the only question was whether they could get one conservative. Per Moe Lane, the word from SCOTUSblog about this morning’s arguments is that even some of the liberals seem ready to abandon ship.

Seeming a bit troubled about allowing the Senate to have an on-off switch on the president’s power to temporarily fill vacant government posts, the Supreme Court on Monday indicated that it may yet allow just that. Even some of the Justices whose votes the government almost certainly needs to salvage an important presidential power were more than skeptical…

Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem, not a constitutional problem. Senators of both parties have used the Constitution’s recess appointment provisions to their own advantage in their “political fights,” Breyer said, but noted that he could not find anything in the history of the clause that would “allow the president to overcome Senate resistance” to nominees…

First, Justice Elena Kagan, although expressing some alarm that the country would wake up “one fine morning” and “chuck” two centuries of history of frequent presidential use of recess appointments, nevertheless said at least twice that “it was the Senate’s job to decide” when it goes out on recess, thus giving it the ability to control when, or if, the president may make such appointments…

The Solicitor General made little headway in arguing that the Constitution meant the president to have significant power to make temporary appointments, and that deferring to the Senate would, in effect, destroy that power. He seemed to startle even some of the more liberal judges when he said that, if it was a contest between historical practice and the words of the Constitution, practice should count the most.

NBC also got the sense that the Court is leaning against O. So did left-wing TPM, noting that Scalia couldn’t resist a mild dig at Obama:

Justice Antonin Scalia, as he often does, led the charge against the Obama administration’s position. He argued that the president’s use of the recess appointments to fill empty slots on the National Labor Relations Board “flatly contradicts the clear text of the Constitution.” When U.S. Solicitor General Donald Verrilli defended the decision by saying the Constitution is ambiguous on that question, Scalia retorted, “It’s been assumed to be ambiguous by self-interested presidents,” to gasps and laughs in the chamber.

Per Gabe Malor, there’s a chance that the Court could decline to rule at all on grounds that this is a political question, i.e. a dispute over powers between the executive and legislature on which the Constitution provides no meaningful guidance. Let the political process sort that out, not the courts. Two problems with that in this case, though. One: The plaintiff challenging O’s recess appointments in the NLRB case isn’t the Senate, it’s a corporation. Technically, this is a case about the executive’s power to regulate private entities by making appointments to regulatory bodies through dubious procedures. Two: Obama’s dubiously-appointed NLRB has already issued decisions and will issue more going forward. Does the Court want to leave those intact without ratifying their constitutionality despite the hotly disputed propriety of how O staffed the Board? The need for public confidence in the integrity of the Board’s rulings makes me think SCOTUS will decide one way or another. The Court’s conservatives might even relish a chance to knock O down in a matter of executive overreach at this point. As it turns out, the “political question” doctrine apparently wasn’t even raised at today’s hearing.

The decision here is, as Ed noted earlier, less important than it used to be now that Reid’s nuked the filibuster for presidential appointees, but it’ll be newly important next year if the GOP holds the majority in a narrowly divided Senate. Imagine O nominates a judge to the D.C. Circuit and, with the help of a few select Republican centrists (Collins, Kirk, etc), Minority Leader Reid manages to pull together 51 votes for confirmation. The only obstacle at that point is Mitch McConnell in refusing to bring the nomination to the floor — unless O can make these pro forma recess appointments, in which case he’ll simply wait for a pro forma Senate session and then fire away. If he can’t, he’s basically at McConnell’s mercy. If the Court rules against him here and the GOP’s odds of winning big in November start to climb this year, expect Obama to nudge anyone in a Senate-confirmable federal position to quit this year so he can fill their vacancy on favorable terms.