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The U.S. Supreme Court may put damper on recess appointments

ALBANY HERALD EDITORIAL: At issue is who decides when the U.S. Senate is in recess

Just in time for the 2014 elections, a new issue that could affect President Obama’s ability to fill top government posts over the last two years of his term of office may be in the making.

At issue is who decides when the U.S. Senate is in recess — the Senate or the president?

According to a report Monday by Reuters News Service, the U.S. Supreme Court seems poised to make a decision, likely to be released in June when temperatures and political fever are high, that would curtail the president’s ability to make recess appointments.

Presidents have the ability to make appointments when the Senate is in recess, a power that had practical reasons for adoption in the nation’s horse-and-buggy days. Because travel was often difficult and senators had businesses at home that needed tending to, the Senate could be in recess for extended periods of time. It didn’t make sense for a federal agency to be left at a standstill when a vacancy occurred and the Senate was not available to give the White House its advice and consent, so presidents were empowered to make those appointments during the Upper Chamber’s down time.

The necessity for the recess appointment has been reduced as mobility has improved. America’s founders could hardly have been expected to have foreseen the advent of automobiles, commuter trains and jetliners as they worked by candlelight.

The High Court on Monday heard a case that will have a direct bearing on recess appointments in the future. A Washington state bottling company, accused by a union of reneging on a verbal portion of an agreement in their collective bargaining agreement, is challenging a decision by the National Labor Relations Board that went against it. The U.S. Circuit Court of Appeals for the District of Columbia ruled early last year in favor of Noel Canning Corp., accepting its argument that the NLRB’s decision was invalid because the Senate technically wasn’t in recess in 2012 when Obama made recess appointments to three of the five members of the labor board.

During the period, the nearly vacant Senate would be called to order, with the only business being to set the next meeting of the Senate a few days later. While no other business was conducted and few senators were in the chambers, the Senate considered itself to be in session. The Obama administration, as one would expect, is arguing that the Senate was, in fact, in recess — the senators just didn’t call it that.

According to the Reuters report, justices on both sides of the political center seemed skeptical of the administration’s argument. Justice Stephen Breyer said the U.S. Constitution clearly outlines appointments that are agreed upon by the chief executive and Senate. He described the disagreement as a “political problem, not a constitutional problem.”

The reason for the recess appointments was clear, as Republicans, who could still filibuster such appointments at the time, were bent on preventing the White House from adding three pro-labor members to the NLRB. But it should be just as clear that the Senate is empowered by the Constitution to set its operating rules and to define its status.

The Supreme Court still can surprise — Who expected Chief Justice John Roberts to be the deciding vote that determined the Affordable Care Act is constitutional because it is a tax? — but a curtailing of the scope of recess appointments is likely. It’s also likely that the labor board’s decisions on the Noel Canning case and a number of others will be invalidated and returned to the NLRB for reviews.

Meanwhile, it adds another log onto what promises to be a fiery election season. Should Republicans gain control of the Senate, the administration, which had seen relief from the nuclear option being discharged in the Senate by Democrats, making consent for most appointments simple majority votes, will again find itself stymied on appointments.

— The Albany Herald Editorial Board