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Supreme Court looks at a president’s power to appoint

By Michael Doyle
McClatchy Newspapers

WASHINGTON: Many federal decisions hung in the balance Monday as Supreme Court justices wrestled with a case that involved the appointments made by presidents during a congressional recess.

In a high-stakes constitutional fight, justices from both the right and left sounded skeptical about the Obama administration’s reasoning in making so-called “recess appointments” to the National Labor Relations Board. If the appointments are deemed invalid, myriad board decisions resolving labor disputes would be cast into doubt, while presidential clout overall would be curtailed.

“You are making a very, very aggressive argument on behalf of executive power,” Justice Samuel Alito warned Solicitor General Donald Verrilli Jr. “You’re just saying when the Senate acts, in your view, irresponsibly, and refuses to confirm nominations, then the president must be able to fill those positions.”

In particular, multiple justices stressed that it’s Congress, and not the White House, that gets to decide when Congress is in recess. This is crucial, because the disputed National Labor Relations Board appointments at the heart of the case heard Monday were made during a brief Senate session that President Barack Obama essentially called a ruse.

If the court agrees with the Senate that it actually was not in recess, then Obama didn’t have the power to unilaterally make appointments.

“It really is the Senate’s job to determine when it’s in recess and when it’s not,” said Justice Elena Kagan, who was appointed by Obama.

The 90-minute oral argument Monday was the court’s first in 2014, and it combined the archaic with the contemporary. It featured justices citing 18th-century dictionaries and an early congressional manual penned by Thomas Jefferson, while playing out before an audience that included White House press secretary Jay Carney and Senate Minority Leader Mitch McConnell of Kentucky.

Technically, the case called National Labor Relations Board v. Noel Canning will force the court to decipher the meaning of a word like “happen.” Practically, justices must also sort through the real-world implications of a decision to overturn presidential appointments.

“There are many dozens of board decisions, and perhaps many hundreds of board decisions, that are under a cloud,” Verrilli told the court, further cautioning against a court decision that might “repudiate the constitutional legitimacy of thousands of appointments of presidents going back to George Washington.”

Presidents like the recess appointment power. President Bill Clinton used it 139 times and President George W. Bush made 171 such appointments, according to the Congressional Research Service. Through June 2013, Obama had made 32 recess appointments.