Recess appointments under fire

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The Supreme Court will decide if recess appointments are constitutional. (Photo courtesy of Associated Press)
The Supreme Court will decide if recess appointments are constitutional. (Photo courtesy of Associated Press)

Debate rages on as the Supreme Court analyzes the validity of presidential recess appointments.

The recent debate was sparked by President Obama’s appointments to the National Labor Relations Board around the time of his reelection.

The Supreme Court met on Monday, Jan. 13, to hear the oral arguments on a case that can affect the way the branches of government interact.

Edward L. Carter, J.D., associate professor of communications, said that although not obvious, the ruling of the Supreme Court will indirectly impact Americans. This is a continuing “battle between the Executive and the Legislative branch to define their powers and how they work together.”

Utah Senator Mike Lee addressed the issue before the House Committee on the Judiciary. He said the problem arose when Obama appointed one individual to the National Labor Relations Board and one to the Consumer Financial Protection Bureau when “the Senate did not consider itself in recess.”

According to Senator Lee’s testimony,  Obama made the appointments “even though the Senate had refused its consent for one of the appointments and had not had an opportunity to consider the others.”

“I am confident the Supreme Court will restore the Senate’s prerogatives and condemn this assault on the rule of law,” he said.

The Constitution states that the president can make appointments to fill any vacancies whenever the Senate is in recess, but it does not seem to state who determines when the Senate is in recess. In this particular case, the Senate met twice during the period of time when Obama made the appointments.

Who determines when the Senate is in recess?

Congressional Research Service shows that presidents have been making these kinds of appointments for centuries. For example, President George Washington and President Dwight Eisenhower made recess appointments during their terms. In more recent years, President Reagan made 240 recess appointments, President Clinton made 139, President Bush made 171, and President Obama has made only 32.

“It would appear that presidents have had no questions as to their authority to determine when the Senate is in recess,” political science professor Byron Daynes said.

Furthermore, Daynes points out that there are inconsistencies between the decisions of the D.C. Circuit Court and the Eleventh Circuit Court. One believes that appointments in session are constitutional, whereas the other one believes that only recess appointments are constitutional.

The disagreement between these courts caused the Supreme Court to intervene. Daynes predicts that “this Supreme Court will rule against Obama” given the fact that the conservatives are in the majority.

On the other hand, Professor Carter said “it’s dangerous to predict based on an oral argument how they will rule.”

Besides, as he pointed out, if the Supreme Court rules against Obama’s appointments, the decisions taken by the National Labors Relations Board during the last two years may become invalid. He believes that in that case, validating the decisions made by the board would be a good resolution.

Carter also explained that this issue exemplifies the process the Constitution envisioned. “The president has power to appoint officers of the U.S., but the Senate is supposed to confirm those, and then the Judicial branch gets to ultimately decide if things are going right,” Carter said. “So, in a way it shows the system is working.”

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