WASHINGTON — The Supreme Court cast doubt Monday on President Barack Obama’s use of a provision of the Constitution to make temporary appointments to high-level positions over the objection of Senate Republicans.
The court is writing on a blank slate as it considers for the first time the Constitution’s recess appointments clause. That clause allows the president to fill vacancies temporarily, but only when the Senate is in recess.
The justices heard more than 90 minutes of arguments in a dispute over Obama’s appointments to the National Labor Relations Board in January 2012. Republicans and employers who objected to NLRB decisions made by those Obama appointees say the Senate was not in recess when Obama acted, and so any decisions made by the board were illegitimate.
Solicitor General Donald Verrilli Jr. warned the court that it would essentially write the recess appointment power out of the Constitution if it found that those appointments were illegal.
Justice Elena Kagan said “congressional intransigence” to Obama nominees may not be enough to win the court fight.
Kagan, Verrilli’s predecessor as Obama’s top Supreme Court lawyer, suggested that it “is the Senate’s role to determine whether they’re in recess.”
There are three questions before the court — whether recess appointments can be made only during the once-a-year break between sessions of Congress; whether the vacancy must occur while the Senate is away in order to be filled during the same break; and whether brief, pro forma sessions of the Senate, held every few days to break up a longer Senate hiatus, can prevent the president from making recess appointments.
