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Supreme Court Weighs Obama's Appointment Power

(Reuters) - The U.S. Supreme Court signaled a willingness on Monday to rein in President Barack Obama's power to temporarily fill senior government posts without the Senate's approval, a move that would curb his ability to bypass a gridlocked Congress.

Most of the nine justices expressed skepticism, during 90 minutes of oral arguments, about so-called recess appointments Obama made to the National Labor Relations Board (NLRB) in 2012.

The court is expected to issue a ruling in the case by June that has the potential to shift the balance of power between the White House and the Senate. While both are now controlled by Democrats, Republicans hope to win control of the Senate in congressional mid-term elections in November.

The Supreme Court could decide the case in various ways, but even a narrow ruling against the administration could be bad news for Obama in the last two years of his term, especially if Republicans control the Senate.

The arguments before the court on Monday dealt with a case in which soft drink bottler Noel Canning Corp is challenging an NLRB ruling against it. The company argues the ruling was invalid because some of the NLRB board members on the panel that issued it were recess appointees picked by Obama.

With the intervention of senior Republicans, the U.S. Chamber of Commerce and other business interests, the Yakima, Washington-based company's case has become a much broader fight over the president's ability to make appointments while the Senate is in recess and what exactly constitutes a recess.

Obama used his recess appointment power to name three members to the five-member NLRB in January 2012. Democratic and Republican presidents have made many such temporary appointments - valid for up to two years - of officials who otherwise would have had difficulty winning Senate confirmation.

Underscoring the political stakes involved in the court case, Senate Republican Leader Mitch McConnell, who has sought to stymie Obama's legislative agenda, attended the arguments.

Under McConnell, Republicans had used Senate rules to frustrate Obama's attempts to fill various positions, including vacancies at the NLRB, up until a Senate rule change was pushed through by Democrats late last year.

"The president made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even trying to obtain its advice and consent," McConnell said in a statement afterward.

White House Counsel Kathryn Ruemmler and White House spokesman Jay Carney were also present. Carney told reporters the administration was "confident that the president's authority to make recess appointments will be upheld by the courts."


The administration says it is following the long-established interpretation of the recess appointments clause of the U.S. Constitution, dating back to President George Washington.

Noel Canning and its backers say the administration has ignored the original intent of the Constitution's drafters, who included the recess appointments clause to ensure the government could continue to function when the Senate was in recess for months at a time and senators would travel to Washington on horseback.

The court could decide the case in various ways, but even a narrow ruling against the government could be bad news for Obama in the last two years of his term.

If Republicans win control of the Senate in November, they would be able to reject Obama appointments outright and would have more sway over when to declare recesses.

Republicans and business groups like the U.S. Chamber of Commerce have long been eager to prevent Democratic presidents from appointing pro-labor members to the NLRB, an independent federal agency which has the power to address unfair labor practices and safeguard employees' rights.

These groups were particularly outraged at Obama naming the three NLRB members while the Senate was not conducting business, but was not technically in a recess.


At least one justice appeared to see the dispute as primarily political.

Justice Stephen Breyer, an appointee of Democratic President Bill Clinton, said the Constitution clearly envisioned that appointments had to be agreed upon by both the president and Congress. "Now that's a political problem, not a constitutional problem" if the two sides disagree, he said.

Despite apparent misgivings about whether the courts should be deciding such an issue, justices from both sides of the ideological divide expressed skepticism about the administration's use of the recess appointment power.

Justice Elena Kagan, appointed to the court by Obama in 2010, was one of those critical of Solicitor General Donald Verrilli's legal arguments on the administration's behalf. The administration, for example, says that it is up to the president to determine when exactly the Senate is in recess.

But, to Kagan, some of Verrilli's arguments seemed to confirm that "it's really the Senate's job to determine whether they're in recess," she said.

Chief Justice John Roberts defended the right of senators to object to appointments they do not like. "They have an absolute right not to confirm nominees that the president submits," he said.


Verrilli's defense was that the way the recess appointments clause has been used over the years has changed in an effort to create a "stable equilibrium" between executive branch and congressional power.

If a majority of justices were to buy that argument, the administration could still lose on a narrower ground, but the recess appointment power would not be entirely disabled. Monday's argument indicated that, although there could be a clear majority to rule against the administration on that narrow ground, some justices might be willing to go further.

If Noel Canning wins its case, the practical fallout for the NLRB would be limited. In July, a Senate deal paved the way for the confirmation of five board members, marking the first time in a decade that the board had a full complement.

If the bottler prevails, those members would have to re-examine some board decisions made by the contested recess appointees.

(Additional reporting by Amanda Becker, Joan Biskupic and Mark Felsenthal; Editing by Kevin Drawbaugh, Ross Colvin and Grant McCool)

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dbarr24 January 14 2014 at 7:05 PM

this isnt going anywhere, and we all know it. As the article says, democratic and republican presidents have made these appointments throughout history with nobody saying anything about it, but now that we have a black president for the first time in our countries very history, we want to limit his abilities to govern for some reason. The only real question is what will history say about us- not him. and even this is not in question, it will say basaically the same thing it has been saying about us since the civil war

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Shari January 14 2014 at 4:28 PM

What needs to happen is democrates and republicans need to start thinking about the people that work and pay their wages. they have a theory of i'll scratch your back if you'll scratch mine. they only get things taken care of that matter to them not the people that they are there to serve. but the people out here working and trying to make ends meet are the ones losing. they need to start working for the people. amen

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dnialst8snatcher January 14 2014 at 3:40 PM

I tired of these political games! It was good when we had Edward Kennedy. He was truly bi-partisan. What a loss!!!

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Margaret January 14 2014 at 3:13 PM

Did he appt. Judge in Texas that let teen off hook for killing 4 people and goes to $500,000 half way house? Shame!

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Cheryle Armond January 14 2014 at 3:08 PM

Ditto, to baseball25boy! As one of the smallest kids on the block,and not a giant 'Political Scientist' I do however, have enough wits about myself to see the results of this Government's worsening situation over the years. With its corrupt and greedy individuals posing as "for the people politicians" just to gain their own prosperous ambitions the only to fight and stop them is to VOTE! VOTE! VOTE! Voting these individuals out of office is the way to take back our government, not anarchy...

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atfg January 14 2014 at 3:00 PM

It is about time!!!!

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pa5m January 14 2014 at 2:56 PM

I do believe baseball25boy said it right. If we want to save America we don't need to blame one party or the either it's time for the American people regardless of color or anything else or even what party you belong to you must take back what belong the people.

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mesager42 January 14 2014 at 2:34 PM

Obama isn't doing anything that other presidents haven't done before him. George W. Bush going to war against Iraq without having Congress officially declare war is one that comes to mind. War is far worse than political appointments. It got our nation into dept to Communist China, lest we forget that every president before George W. Bush had taken steps to fight communism, but Bush climbs in bed and gets it on with the communists. I can only imagine the bedroom talk that took place that left our nation feeling that it had been - well, you know what that walk of shame is after an American female nation feels used and abused.

SCOTUS would be better off distancing themselves with more Republicans drama-queen demands in order to keep from sullying what integrity they still have intact.

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2 replies to mesager42's comment
atfg January 14 2014 at 3:01 PM

After 9/11 would you he rather sit down and have tea with the enemy that blew our buildings and planes up. Really!!!

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gman3b January 14 2014 at 5:24 PM

Really not all that hard to educate yourself. Congress - with bi-partisan support - passed the Authorization for Use of Military Force Against Iraq" resolution before GW Bush stormed into war. It passed the House on Oct. 10, 2002 by a vote of 296-133 (81 Democrats joined 213 Republicans in passing the resolution). It passed the Senate on Oct. 11, 2002 by a vote of 77-23 (29 Democrats joined 48 Republicans in this instance). Very different story when Obama arbitrarily decided on his own to first strike Libya, then Syria.
With regards to debt, Obama has added more to our national debt than the previous 43 presidents combined.

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carlo32531 January 14 2014 at 2:26 PM

he is my prts. he has that right

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Sekinu2 January 14 2014 at 2:17 PM

Its about time the Supreme Court actually did its job. obama has been going around the laws and regulations of this country since day one and just doing whatever he wants illegal or not.

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