But that view may underestimate the allure of the lower court's
reasoning to the dominant, conservative wing of the high court,
which takes up the case Monday.
In its January 2013 ruling involving "recess appointments" to a key
regulatory agency, the U.S. Court of Appeals for the D.C. Circuit
repeatedly invoked the nation's early history and a literal reading
of key constitutional terms.
Such an "originalist" approach in the past persuaded the court under
Chief Justice John Roberts to take bold action. In 2008, for
example, the court for the first time endorsed an individual right
to own guns, based on the early history of the Second Amendment.
Conservatives controlled that 5-4 decision.
The new case, National Labor Relations Board v. Noel Canning,
revolves around the president's power to appoint top officials with
the "advice and consent" of the Senate. A "recess appointments"
clause in the Constitution supplements that power by letting the
president make temporary appointments when the Senate is not in
Judge David Sentelle, who wrote the D.C. Circuit opinion, said the
recess-appointment power can be exercised only between defined
sessions of Congress, not during breaks within a session, as
commonly occurs, and that a president could fill only those
vacancies that arise after Congress has recessed.
That interpretation conflicts with the practices of most presidents
and Senates — Democrat and Republican — over the past century.
In its appeal, the Obama administration warned that the D.C. Circuit
opinion "would eviscerate" the president's appointment power and
"dramatically upset" the equilibrium between political branches.
While that remains to be seen, the outcome of the case would affect
the president's ability to make certain recess appointments, whether
for urgent vacancies or to seat long-stalled nominees. The disputed
labor-board vacancies had been caught up in partisan wrangling, and
Obama's action was a move around Senate inaction.
GROUNDED IN HISTORY
Judge Sentelle's reliance on originalist interpretations could
particularly influence Justices Antonin Scalia and Clarence Thomas,
who among the nine justices search most for the original
understanding of the Constitution's drafters.
To back up his view that only vacancies arising during a recess are
covered, Sentelle cited a leading dictionary from the 18th Century
and said George Washington understood the recess appointments power
to extend only to such vacancies.
Sentelle also repeatedly cited the Roberts' Court's seminal 2008
Second Amendment ruling, District of Columbia v. Heller. In that
decision, the other conservatives, Roberts and Justices Anthony
Kennedy and Samuel Alito joined with Scalia and Thomas.
The notion that the D.C. Circuit judgment was grounded in history
and tradition was advanced forcefully in briefs submitted to the
justices by lawyers for Noel Canning, the soda-bottling company
challenging the labor-relations board appointees, and by two groups
of leading conservative law professors.
A group of professors led by Stanford Law Professor Michael
McConnell takes issue, for example, with an administration claim
that President Washington made at least two recess appointments to
fill vacancies that had first arisen before recesses began.
[to top of second column]
McConnell, a former U.S. appeals court judge, counters with
documents from President Washington to the Senate that the brief
says demonstrate that the two vacancies actually arose during the
McConnell also argues that only in recent decades has it become
commonplace for presidents to make "recess appointments" to
vacancies occurring earlier during a session — as opposed to during
the formal recess break.
As the dueling parties argue over artifacts of history,
administration lawyers highlight an opinion written by Attorney
General William Wirt in 1823 that would support filling vacancies
that arose before a recess. The challengers contend subsequent
attorneys general opinions are at odds with that.
Such contradictory interpretations of history and constitutional
text arise regularly in Supreme Court cases, and it will fall to the
justices to resolve the conflict.
Washington lawyer John Elwood, a former Bush Justice Department
official who has focused on recess-appointment powers, said
supporters of upholding the D.C . Circuit have "assembled
significant evidence" that the drafters of the Constitution and
early presidents believed an office must fall vacant during the
recess to be subject to a recess appointment.
"The originalist case ... is more powerful than I thought
beforehand," Elwood said.
Yet, Elwood, like other legal analysts, is still hedging his bets on
how the justices will rule — particularly because while the Roberts
Court has shifted to the right, it is also known for incremental
One narrow way to resolve the case would be tied to a secondary
issue: whether a president's recess-appointment power extends to
when the Senate is convening in "pro forma" sessions every three
days. In such sessions, no business is conducted and often only a
single senator is present. The Senate, in fact, has used such
recurring short meetings to try to avert presidential appointments.
When President Obama made the disputed appointments on January 4,
2012, the Senate was holding a series of pro forma sessions with
intervening three-day recesses.
If the justices turn to that narrow question of the validity of pro
forma sessions — which the Obama administration argues cannot become
a tool to prevent "recess" appointments — they would avoid a more
The D.C. Circuit declined to address the question of how pro forma
sessions of the Senate may affect a president's appointment power.
But the justices themselves added it to their agenda when they
agreed to take up the case — perhaps signaling an interest in
avoiding a more contentious fight over separation of powers.
(Reporting by Joan Biskupic; editing by Eric Effron)
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