Checks ‘n’ Balances

Obama Will Lose Recess Appointment Case, but Will Other Presidents Lose Their Power?

The Supreme Court is certain to declare the White House’s filling of jobs without the Senate’s approval illegal. The question is how far the court, which rather likes executive power, will go.

Jonathan Ernst/Reuters

The “recess appointments” case heard Monday morning by the United States Supreme Court is precisely the sort of constitutional showdown the chattering classes of Washington love to parse. There is the hypocrisy angle. There is the executive branch versus legislature angle. There is the Democrat versus Republican angle. There is even in this instance the angle that transcends partisanship: labor’s eternal struggle against management (the fight, remember, is over appointments to the National Labor Relations Board, which Republicans now loathe). Oh, I almost forgot; there’s the evergreen angle of tension and conflict between the Roberts Court and the Obama administration.

That’s why, for months, friends-of-the-court briefs poured toward the justices from every conceivable corner of law and academe. That’s why email boxes were jammed with “expert” analysis in the days leading up to— and even, Lord have mercy, in the hours following— the argument. Never have so many earnestly disagreed so much so quickly about so few words in the text of a document so old. President Obama abused his power when he made those appointments. No, it was the Senate that abused its power. No, recess appointments are a vital safety-catch to allow government to function. No, they are restricted by the text of the Constitution. On and on the argument went, 21st century minds seeking to comprehend the meaning of 18th century ambiguities.

Sometimes, the Court takes legal issues and politicizes them. We saw that last June when the conservative justices struck down the heart of the Voting Rights Act. And sometimes the Court takes a political issue and envelopes it with a constitutional patina. That’s what is about to happen in NLRB v. Noel Canning. The political debate will never end about recess appointments, the talking heads will never cease talking about them, but the legal case is not (and has never been) as close or as complicated as so many experts have suggested it is. In fact, I’d be surprised if we have to wait until the end of June to get the ruling here—we may have it by the end of April.

Sometime between now and then, as many as six justices on this Court are going to declare that the current president went beyond his constitutional power when he made three NLRB “recess” appointments in January 2012. We know this because a clear majority of the justices said as much Monday during oral argument (PDF), because the language of the Constitution itself suggests this result, and because it is sensible to conclude, as Justice Elena Kagan did Monday, that the Senate should be the body that gets to decide when the Senate is in a “recess” the permits the president’s emergency power to make appointments. Sometimes at the center of all the spin is just an island of calm.

The administration’s defense of the exercise of the President’s recess power essentially died just a few minutes into the argument, at the moment Justice Antonin Scalia asked Solicitor General Donald Verrilli the following question: What do you do when there is a practice that—- that flatly contradicts a clear text of the Constitution? Which—which of the two prevails?”The Solicitor General did not squarely answer the question because he could not squarely answer the question because the answer, of course, is that the clear text should prevail. What Justice Scalia is implying is that the fact that presidents for decades may have unlawfully exceeded their “recess appointment” power doesn’t constitutionally insulate the current president from being charged with exceeding that power.

Justice Kagan put it another way Monday when she talked about the way in which the clause has been used over the past generation. “[G]oing back to President Reagan, presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved,” she said to Verrilli. “And that makes me wonder whether we’re dealing here with what’s essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.”

A hundred historical wrongs don’t make a right, in other words, and this is precisely the sort of Supreme Court that is both willing and able to say so. No reasonable observer of the argument, or reader of the transcript, ought to be able to come away with the view that the White House will prevail here in any meaningful way. The only open question is how far the justices will go in limiting the power of presidents—this one and his successors—to use this appointment power. And here is where the beleaguered administration may catch a break from this hostile court.

The Court’s conservatives are typically big fans of executive branch power— in fact, all of them but Justice Anthony Kennedy served in the federal executive branch before moving over to the judiciary. My hunch is that they won’t be rushing to vitiate the “recess appointment” power because of their general constitutional respect for executive branch authority and also because, as a practical matter, they won’t want to hinder the ability of future Republican presidents to get around future Democratic Senates. I don’t necessarily predict that Justice Scalia or Justices Clarence Thomas or Samuel Alito will be so moderating. But I can certainly see Chief Justice John Roberts and Justice Kennedy searching for some middle ground.

Contrary to what you may have read or heard, the world didn’t end when President Obama aggressively filled those NLRB posts—just as it didn’t end when his predecessor, George W. Bush, made his own (soon-to-be-unlawful) recess appointments. And it won’t end when this Supreme Court backs all these presidents off their current position. The Canning case does not represent a constitutional crisis. It represents instead a sorry reflection of the pettiness of current political debate in Washington. Just think of the time, and the energy, and the money devoted to dissecting this constitutional relic. And just think how little will be changed, for any president, when the justices are through with this case.