Topic of the day: Obama's controversial recess appointments go before SCOTUS

Published: Monday, Jan. 13 2014 1:23 p.m. MST

In this Jan. 24, 2013 file photo, Consumer Financial Protection Bureau head Richard Cordray listens at left as President Barack Obama announces in the State Dining Room of the White House in Washington that he will re-nominate Cordray to lead the bureau, a role that he held previously under a recess appointment.

Carolyn Kaster, Associated Press

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The high court is hearing arguments today concerning the validity of President Barack Obama’s use of a constitutional provision known as the recess appointments clause, a clause enabling him to make political appointments while the Senate is in recess, according to SCOTUSblog.

As reported by Real Clear Politics, three federal appeals courts have confirmed that Obama has transgressed his constitutional authority by making these recess appointments. National Labor Relations Board v. Noel Canning is only the latest example of an ideological impasse that has muddled the state of Washington’s affairs.

Mark Sherman of Real Clear Politics reports that Solicitor General Donald Verrilli Jr. said that a ruling against the president would “dramatically upset that long-settled equilibrium.” Verrilli substantiated his belief to the court by citing that 14 presidents have appointed thousands of civilians and military officers while the Senate was in recess — a practice that is agreed upon by nearly everyone.

The exact recess appointment power of the president is what is in question here — the president’s power. “On one side of the issue, the Obama administration argues it has the power to decide for itself when the Senate is in recess for purposes of making recess appointments,” writes Warren Richey of the Christian Science Monitor. He says on the other side are administration critics who fear that expansive recess appointment abilities give the president "unlimited unilateral appointments power."

According to Forbes' William Baude, who is a University of Chicago Law School assistant professor, there are two reasons why the president should constitutionally lose this battle. First, he says, the Constitution says the vacancies must “happen during the recess of the Senate.” Baude claims they did not. Secondly, the appointments must happen during the recess of the Senate, which Baude also says did not happen.

One is an argument of originalism and the other of modern practice. “When the arguments are considered together, the administration’s case should be doomed. If the Court relies on originalism, the appointments are invalid for one reason. If the Court relies on modern practice instead, they are invalid for another,” Baude argues. “The administration has not come up with a consistent argument — a consistent approach to constitutional interpretation — that allows it to survive all of the challenges.”

However, Peter Shane of The Atlantic disagrees with that assessment. "The D.C. Circuit’s limitation of the clause to vacancies that first open up during a recess has not been followed since the 1820s," he states. "That limitation is so obviously impractical that I foresee no real prospect that the Supreme Court will endorse it."

It seems that a line in the sand has been drawn with a partisan stick. However, whatever the court decides will surely affect the way Washington conducts business in the future.

Erik Raymond is experienced in national and international politics. He relocated from the Middle East where he was working on his second novel. He produces content for DeseretNews.com. You can reach him at: eraymond@deseretdigital.com, @RaymondErik

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