High court to study president’s recess-appointment power

FILE - In this Dec. 19, 2013 file photo, a view of the Supreme Court can be seen from the view from near the top of the Capitol Dome on Capitol Hill in Washington. The Supreme Court hears arguments Monday in a clash between President Obama and Senate Republicans over the power granted the president in the Constitution to make temporary appointments to fill high-level positions.   (AP Photo/Susan Walsh)
FILE - In this Dec. 19, 2013 file photo, a view of the Supreme Court can be seen from the view from near the top of the Capitol Dome on Capitol Hill in Washington. The Supreme Court hears arguments Monday in a clash between President Obama and Senate Republicans over the power granted the president in the Constitution to make temporary appointments to fill high-level positions. (AP Photo/Susan Walsh)

WASHINGTON - A routine labor dispute at a soft-drink bottling company in Yakima, Wash., has now bubbled up to the Supreme Court, posing a challenge to presidential powers.

In a longer-than-usual oral argument today, justices will weigh the appointments that presidents can make during a Senate recess.

“On its face, it looks like a little tool, this tool about recess appointments,” Nicholas Rosenkranz, a professor at the Georgetown University Law Center, said at a Federalist Society briefing, “but … it shifts the balance of power, because appointments are a big bargaining chip.”

The case is specifically important for Yakima-based Noel Canning and the National Labor Relations Board, whose members are appointed by the president.

Underscoring the stakes, Republican senators, led by Senate Minority Leader Mitch McConnell of Kentucky, have been allotted additional time during the 90-minute oral argument.

Senators “have a powerful stake in ensuring that the executive’s claim of power to make appointments unilaterally, which the [Constitution’s] framers deliberately withheld,is repudiated,” attorney Miguel Estrada wrote in a brief on behalf of the GOP senators.

A family-owned firm that’s part of the larger Noel Corp., Noel Canning ran afoul of the the labor board in February 2012, when the board upheld an administrative judge’s ruling against the company in a contract dispute with Teamsters Local 760.

Two of the three labor board members ruling against Noel Canning, Democrat Sharon Block and Republican Terence Flynn, had been appointed by President Barack Obama in January 2012. They had not, however, been confirmed by the Senate.

Instead, Obama gave recess appointments to the two nominees. The Constitution authorizes presidents to make such appointments “during the Recess of the Senate, which shall expire at the end of their next session.”

Senate Republicans have joined Noel Canning in challenging the appointments’ legitimacy. So have South Carolina and 16 other right-to-work states, where conservative officials are unhappy with some labor board decisions. If the challengers win, any labor board decisions made by Block and Flynnwould be cast into doubt.

“They will have to go back and revisit these cases,” said attorney John Elwood, a former Justice Department official. “It will be hundreds and hundreds.”

Myriad challenges already have been lodged by employers including Pennsylvania’s Lancaster Symphony Orchestra, the University of Southern California’s Keck Hospital and a manufacturing facility in Lakeland, Fla., called Maxpak. The challenges are on hold pending a Supreme Court decision in the Noel Canning case.

The U.S. Court of Appeals for the District of Columbia Circuit ruled that for appointment purposes, a “recess” is only between the first and second session of a Congress. For instance, the first session of the current Congress expired Dec. 26, 2013, and the second session commenced Jan. 3, 2014.

The appellate court also said that the recess appointments can only be made for positions that become vacant during the recess. If the Supreme Court agrees, this would dramatically reduce the number of appointments that could be made.

President Bill Clinton made 139 recess appointments and President George W. Bush made 171, according to the Congressional Research Service. Through June 2013, Obama made 32 recess appointments.

“Throughout our history, presidents have made appointments in these circumstances to fill offices temporarily when the Senate was unavailable to provide its advice and consent, thereby ensuring that the laws would be faithfully executed,” Solicitor General Donald Verrilli Jr. advised the Supreme Court.

Some of these recess appointees eventually get their day on the Senate floor.

In March 2010, for instance, Obama gave a recess appointment to Florida native Francisco Sanchez; six months later, the Senate confirmed Sanchez to his Commerce Department trade post.

Senate Democrats initiated pro form a sessions in order to block George W. Bush’s Republican nominees. A presiding senator gavels the Senate into a very brief session, typically with no other senators present. The idea is that by doing this every few days, the Senate avoids starting a recess.

During the Obama presidency, Senate Republicans, with the help of GOP lawmakers in the House of Representatives, have similarly forced the pro forma sessions, including the one during which Obama appointed Block and Flynn.

“Who determines - the Senate, or the president - whether the Senate is in session? The Constitution’s text and structure point to only one answer: the Senate,” the Republicans said in court papers.

But Verrilli said the Senate made clear in voting for the pro forma sessions that no business would be conducted and that, in essence, the Senate would be in recess. “The president took the Senate at its word. And rightly so,” he said.

A few hours after the court hears the case today, the Senate is scheduled to vote on the nomination of Robert Wilkins, currently a federal trial judge, to serve on the federal appeals court in the District of Columbia.

Senate Democrats changed Senate rules, limiting the ability of the minority party to block most presidential nominees, after the GOP had blocked the nomination of Wilkins and two others to the appeals court.

Information for this article was contributed by Michael Doyle of the McClatchy Washington Bureau and by Mark Sherman of The Associated Press.

Front Section, Pages 1 on 01/13/2014

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