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.