President's recess appointment power at high court
By MARK SHERMAN Associated Press
WASHINGTON—President Barack Obama and Senate Republicans are squaring off at the Supreme Court over the president's power to temporarily fill high-level positions.
The high court is hearing arguments Monday in a politically charged dispute that also is the first in the nation's history to explore the meaning of a provision of the Constitution known as the recess appointments clause. Under the provision, the president may make temporary appointments to positions that otherwise require confirmation by the Senate, but only when the Senate is in recess.
The court battle is an outgrowth of the increasing partisanship and political stalemate that have been hallmarks of Washington over the past 20 years, and especially since Obama took office in 2009.
Senate Republicans' refusal to allow votes for nominees to the National Labor Relations Board and the new Consumer Financial Protection Bureau led the president to make the temporary, or recess, appointments in January 2012.
Three federal appeals courts have said Obama overstepped his authority because the Senate was not in recess when he acted. The Supreme Court case involves a dispute between a Washington state bottling company and a local Teamsters union in which the NLRB sided with the union. The U.S. Circuit Court of Appeals for the District of Columbia overturned the board's ruling, and hundreds more NLRB rulings could be voided if the Supreme Court upholds the appeals court decision.
More broadly, if the justices ratify the lower court ruling, it would make it nearly impossible for a president to use the recess power. Under such a ruling, presidential nominees could be blocked indefinitely when the president's party does not control the Senate.
Three federal appeals courts have upheld recess appointments in previous administrations.
Senate Republicans also are taking part in the case, in support of the company, Noel Canning.
The impasse over confirming nominees to the NLRB and the CFPB was resolved last summer. And majority Democrats have since changed Senate rules to limit the ability of the minority party to block most presidential nominees, spurred by GOP efforts to block three Obama appeals court nominees.
But while situations like the one that led to the current court case are unlikely to arise in the short term, a Republican takeover of the Senate in the midterm elections in November could prompt a new round of stalled nominations, said John Elwood, a Washington lawyer who served in the Justice Department during the Bush administration and has written extensively about recess appointments. "We may be back where we were before," Elwood said.
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