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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)

Join the discussion

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michael January 13 2014 at 11:01 PM

SCOTUS needs to rein in this guys reign of terror on our Constitution. I don't know if we as a nation can ever recover from the damage this man has done.

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1 reply
mohtro michael January 13 2014 at 11:35 PM

We are still recovering from what Reagan did and will never recover from the Bush bancrupcting of our country. It is always the GOP that gets us in trouble and the Dems have to bail us out. Time after time. 1932, 1992, and 2008 just to mention the 3 worse times that the dems had to save us.

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2 replies
William mohtro January 14 2014 at 1:57 AM


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Fiery one mohtro January 14 2014 at 1:24 PM

Geezz put down the pipe will ya?

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Dave January 13 2014 at 9:44 PM

The headline link said the Supreme Court may "reign in" Obama's power. Oops, that's bad grammar. It's "rein in", like reins on a horse.

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2 replies
sun1045 Dave January 13 2014 at 9:52 PM

Maybe more like reign of power he's been after since day one...

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tippy301 Dave January 13 2014 at 9:53 PM

A nose ring & cattle prod seem more appropriate; IMO.

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Solomon January 13 2014 at 9:34 PM

When sombody looks you in the face and "flatout lies" what should you think of that person ? When the president of the United State of America, Barak Obama, looks you in the face and "flatout lies"
what should you think of that president. Obama is basically saying, "the truth is what I say it is".
If you want to believe a lie, believe it but get back in the closet.

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1 reply
faitreid Solomon January 13 2014 at 10:05 PM

Didnt Bush lied about Iraq war and left the country into recession, millions of dollars wasted.

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1 reply
bannorhill faitreid January 13 2014 at 10:27 PM

Lies like " Saddam Hussein has spent the better part of this decade, and much of his nation's wealth, not on providing for the Iraqi people, but on developing nuclear, chemical and biological weapons and the missiles to deliver them."?

Wait that was a Bill Clinton lie.

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cathybugles January 14 2014 at 1:09 PM

Reign is the proper word in this case for our tinpot dictator. If we survive eight years, an amendment should mean he won't reign forever. Conservative only pleez, no more moderates.

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1 reply
Garry cathybugles January 14 2014 at 1:23 PM

Ya got it right. Obama doesn't think the constitution applies to him, he's above the law. This from a person who had zero qualifications for the office of POTUS. He has issued more executive orders , which surpasses the legislature, than any previous prez. Don't be surprised if he issues an executive order during his last months in office declaring martial law and that he can become president for life. If he is able to appoint any more to the supreme court, God help us and the USA

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1 reply
1 Garry January 14 2014 at 1:41 PM

This Brother "Can't Read" he violates the trust that every Black AMERICAN and every other citizen in American. This Brother was to go"

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papjimcurl January 14 2014 at 1:12 PM

any bets that the justices will cave to Obama? After John Roberts declared the aca constitutional, a decision that left millions of americans wondering what was really going on. Then you remember the whiplash he critized the justices with in his inaugaration speech. Was Roberts running scared? Remember , this was a law that had not yet been written, but voted on by the democrats & passed without as much as a single vote from the republican side of the aisle. Since then, Obama has added,revised, gave exemptions to the law he created without any approval from any one but himself & his advisers.

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1 reply
MIchigan Man papjimcurl January 14 2014 at 1:38 PM

I bet none of the justices read the details of OBAMACARE.

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GENE January 14 2014 at 1:13 PM

Abraham Lincoln said it all 150 years ago; "At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide." I have to wonder if our current president has ever even HEARD of Abraham Lincoln.

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William January 14 2014 at 1:01 AM


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MIchigan Man January 14 2014 at 1:36 PM

I bet the king is fuming that someone is higher than he. What took them so long?

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1 January 14 2014 at 1:38 PM

Hey Brother, you know that you are not above the Law, the US Constitutional is the law of the Land, "Its not your back Ground approach to violated the law of the Land. AMENDMENT XII . and that you as the President will follow the Bill of rights.

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1 reply
baseball25boy 1 January 14 2014 at 2:06 PM

the bill of rights only refer to the first 10 amendments of the US constitution. XII is the 12th. nice try though.

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hotspringspark January 14 2014 at 1:45 PM

They take the weekend off and Obamanation tries to claim they are in recess. Thug

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