Under the U.S. Supreme Court: Rough times ahead for Obama

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Writer
President Barack Obama speaks on the possibility of a government shutdown during a media availability following Obama's meeting with Israeli Prime Minister Benjamin Netanyahu in the Oval Office at the White House in Washington, D.C. September 30, 2013. --UPI/Kevin Dietsch | <a href="/News_Photos/lp/759db5e4efc7e38608a0119229ac7660/" target="_blank">License Photo</a>
President Barack Obama speaks on the possibility of a government shutdown during a media availability following Obama's meeting with Israeli Prime Minister Benjamin Netanyahu in the Oval Office at the White House in Washington, D.C. September 30, 2013. --UPI/Kevin Dietsch | License Photo

WASHINGTON, Oct. 6 (UPI) -- The new U.S. Supreme Court term that begins shortly on the first Monday in October promises to be a rough one for President Obama and his appointment power, and a good one for Republicans.

One of the first cases to be heard, McCutcheon and RNC vs. FEC Tuesday, is an attack on the aggregate amount individuals may contribute in a two-year period, both to non-candidate linked committees and committees linked to a candidate.


Washington's Center for Responsive Politics describes the case as an attempt to empower donors "to give the maximum contribution to as many candidates, parties and PACs as they wished,"

The same conservative five-justice majority that produced 2010's Citizens United vs. FEC, which along with a lower-court ruling opened the floodgates for unlimited contributions as long as they are "independent electioneering" expenditures, might find the RNC argument on direct contributions persuasive.


There is also the upcoming challenge to the Affordable Care Act's mandate for contraception insurance coverage, brought by for-profit companies whose owners say the mandate violates their principles. The case has not yet been accepted by the high court, but probably will be sometime in the new term.

How the court will jump in the contraception mandate case is anyone's guess.

Another case not yet scheduled by the justices but accepted for review last summer is a sharp attack on Obama's broad claim of recess appointment authority -- something a brief from U.S. Senate Republicans calls a presidential "power-grab."

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The president's claim has not fared well in the lower courts. Three U.S. courts of appeal have ruled against it: the 3rd Circuit, headquartered in Philadelphia, the 4th Circuit in Richmond, Va., and the powerful U.S. Court of Appeals for the District of Columbia Circuit.

The D.C. Circuit ruling is the one that will be reviewed by the Supreme Court.

The controversy spans two administrations. Normally, the president appoints high officers of the government with the "advice and consent" of the Senate. But the Constitution's recess clause says, "The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their [the Senate's] next session."


The question in the D.C. Circuit case is when does that power kick in?

Does the president's recess-appointment power become active during a break within a formal session of the Senate? Or is it limited to breaks that occur between the formal sessions of the Senate. Senators of both parties have taken to holding brief "pro forma" sessions, sometimes to a near empty chamber, to frustrate recess appointments. Such appointments, if successful, don't require Senate confirmation.

The high court's conservative majority, and possibly one or two of the four liberals, may also judge the president's claim with what used to be called a jaundiced eye.

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Presidents since George Washington have made recess appointments to allow the federal government to function with key personnel. In modern times presidents have used recess appointments to avoid political fights in the Senate.

The ground rules changed during President George W. Bush's administration. Though Bush made 105 recess appointments, Senate Democrats began holding "pro-forma" sessions of the Senate during a recess, "some lasting less than a minute," The Washington Post reported. Democrats argued that the pro-forma sessions kept the Senate in session, even when most of the chamber was out for a holiday and no business was conducted.


Getting payback, Senate Republicans did the same thing during Obama's administration, holding short pro-forma sessions every three business days, hoping to keep the president's appointment powers in check.

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Obama opted to challenge the practice in January 2012 as some Republican senators were holding pro-forma sessions while the Senate technically was on a 20-day recess.

When Obama moved ahead with three appointments to the National Labor Relations Board that Republicans considered too labor-oriented -- Sharon Block, Terence F. Flynn and Richard F. Griffin Jr. -- a Pepsi bottling and distributing company in Washington state, Noel Canning, took the board to court after it ruled against it in a union dispute, challenging the board's legitimacy.

At the time, the NLRB had five purported members, two who had taken their seats with Senate confirmation before the controversy and the three Obama recess appointees. The recess appointments have since lapsed.

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Republicans in both the House and Senate filed friend-of-the-court briefs supporting Noel Canning. The Senate brief may have more impact.

"Amici curiae [friends of the court] are Senate Republican Leader Mitch McConnell [R-Ky.] and 44 other members of the United States Senate. ... As members of the Senate, amici have an unparalleled interest in safeguarding the chamber's constitutionally prescribed role in the appointments process, which the executive here sought to circumvent," the brief said.


"Particularly given Senate rules and practices providing members of the minority party a meaningful role in the chamber's consideration of appointments, amici have a powerful stake in ensuring that the executive's assertion of a unilateral power to appoint federal officers -- which the Framers [of the Constitution] deliberately withheld -- is repudiated.

"Amici also have an unmatched interest in preserving the chamber's constitutional authority to govern its own proceedings, which the executive also attempted to override," the brief added. "Amici therefore have a strong interest in assisting in the [Supreme] Court's full consideration of all issues presented in the case."

The GOP senators said they "agree with petitioner National Labor Relations Board [and respondent Noel Canning] that this case presents an issue of great importance that warrants this court's attention.

"Indeed," their petition said, "the stakes for the separation of powers are much greater than the executive lets on. The [NLRB's] portrayal of the dispute as concerning only the scope of the president's power to fill vacancies when the Senate is absent omits a crucial component of the case:

"When the president made the purported recess appointments to the board on Jan. 4, 2012, the Senate was not in 'the recess,' even by the executive's own longstanding definition. Quite the contrary, between Dec. 17, 2011, and Jan. 23, 2012, the chamber held regularly scheduled sessions every three days, at which it could [and did] conduct any legislative business it chose, by unanimous consent, up to and including passing legislation. Until now, the executive itself -- including this administration, in this [Supreme] Court -- has agreed that by doing so, the Senate remains in 'session,' foreclosing recess appointments."


The NLRB petition "elides this critical fact, thus distorting the issue the case actually presents and concealing its true implications for the constitutional structure," the GOP brief said. "By purporting to appoint principal officers unilaterally while the Senate was sitting, the president usurped two powers that the Constitution confers explicitly, and exclusively, on the Senate. Article II gives the chamber an absolute veto over appointments ... except for inferior officers Congress itself exempts and temporary appointments to fill vacancies that 'happen during the recess of the Senate."

Besides advice and consent on appointments, the Constitution and the Supreme Court recognize the Senate alone has authority "to prescribe its own rules and procedures."

"By making principal-officer appointments without the Senate's approval -- when the chamber decided not to 'recess,' but instead held regular meetings, as its records attest -- the president claimed both of these bedrock Senate powers for himself," the brief said. "Indeed, the executive has maintained that the president may deem the Senate in a de facto 'recess' whenever in his view it is 'unavailable' to confirm his nominees."

The brief argued the president "himself made clear how elastically he interprets 'availability.' He admittedly resorted to recess appointments in January 2012 not because the Senate was unable to give an answer on nominations, but because he did not like the answer he received."


The GOP brief said the D.C. Circuit "faithfully adhering to the constitutional text, structure, and history, correctly repudiated the president's power-grab."

The brief fumes at what it calls the president's "ongoing defiance" of the appeals court.

In its petition, the NLRB said if it looks like a duck, walks like a duck and quacks like a duck, it's a duck.

"By virtue of the Senate's unanimous-consent order, the second session of the 112th Congress began with a period of nearly three weeks, from Jan. 3 to Jan. 23," the petition said, "in which the Senate had provided that 'no business [was to be] conducted,' and during which no Senators were required to be in attendance other than the lone senator who gaveled each pro forma session in and out. ...

"In view of the Senate's explicit cessation of business for that extended period, the president determined that the Senate was in recess," the petition said. "Accordingly, on Jan. 4, 2012, the president invoked the [Constitution's] recess appointments clause and appointed three new [temporary] members to fill the vacant seats on the board."

While all this percolates at the Supreme Court, the NRLB has been conducting business. But it has developed a plan to close all except a few functions during the government shutdown.


Those functions include keeping open the Office of Inspector General hotline as necessary "for safety of life and protection of property" in labor disputes or to protect federal legal actions already taken and all "necessary court actions."

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