Politics & Policy

Could Obama Bypass the Senate with a Supreme Court Recess Appointment?

President Obama speaks on the passing of Antonin Scalia, February 14, 2016. (Mandel Ngan/AFP/Getty)

It’s a Supreme Court plotline that would be worthy of the upcoming season of House of Cards, the Netflix show that often pits a power-driven president against an obstinate Congress.

Senate majority leader Mitch McConnell has declared he has no intention of moving any Obama appointee to a floor vote this year. President Obama might contemplate making a recess appointment and having his choice take office immediately, to serve a term that, under the rules, could last almost two years (until the end of the next session of Congress in late 2017). There would no doubt be challenges to the legality of such a move, but resolving them could take longer than the appointment itself would run.

CNN’s Dana Bash asked Senator Patrick Leahy, the ranking Democrat on the Judiciary Committee, whether he would recommend that the president make a recess appointment. Leahy evaded the issue by answering. “I don’t even think we’re there.”

Well, actually we might be. It’s in dispute, but several legal scholars say that President Obama has a narrow window during the Senate recess that’s going on right now to make a recess appointment.

In 2012, Obama made four controversial appointments to the National Labor Relations Board, at a time when the Senate had not formally declared it was in recess. The Supreme Court, in National Labor Relations Board v. Noel Canning, unanimously declared that his picks were made unconstitutionally during a pro forma recess and were thus invalid. The majority opinion by Justice Stephen Breyer, a President Clinton appointee, held that under the Constitution “the Senate is in session when it says it is.” But the Court found that deference to the Senate isn’t absolute: When the Senate is without the capacity to act (if all senators, say, effectively gave up the business of legislating), it would be in recess even if it said it was not.

RELATED: Justice Scalia: Political Philosopher and Political Football

That may be the situation in which we now find ourselves. Elizabeth Price Foley, a law professor at Florida International University, notes that under Breyer’s opinion:

A Senate recess of fewer than three days is not enough to trigger the President’s recess appointment power; the Senate’s recess must be at least ten days in duration.

So how long is the Senate’s present recess? . . . A Senate recess from February 12 (at noon) until February 22 (at noon) is a recess of exactly ten days. Thus, under Noel Canning, the Senate is potentially in recess, and President Obama’s recess appointments power may be exercised.

But the window closes on Monday, February 22, and it’s highly unlikely that the Senate would again take a recess long enough for Obama to make an appointment later.

#share#There is some dispute over whether the current recess is actually ten days. Some Senate aides I talked with say that Sundays aren’t counted when establishing the length of any recess. But if Obama made a recess appointment, it could be difficult for anyone to challenge its legality. Foley says it would be difficult for someone to “have standing” to sue until someone is “adversely affected” by a narrowly approved Supreme Court ruling. Noel Canning, a businessman, was directly harmed by an NLRB ruling passed with the votes of Obama’s suspect recess appointees; that fact allowed him to sue.

Both sides are now clearly divided on ideological lines and their base voters will probably punish anyone inclined to compromise.

Michael Rappaport, who has written on recess-appointment issues, believes that standing to challenge an Obama recess appointment could come from another direction. He cites Nguyen v. United States, a 2003 Ninth Circuit Court of Appeals case in which the legitimacy of a three-judge panel hearing a case was challenged because one of the judges was a federal judge from the Mariana Islands, a U.S. territory, and not a judge as defined by Article III of the Constitution. The case was allowed to go forward; but, in an opinion written by Supreme Court Justice John Paul Stevens, the U.S. Supreme Court concluded that the panel lacked authority to hear the case.

Nonetheless, Rappaport says he can see White House lawyers making a strong case to President Obama that he could go forward with a recess appointment. “The major drawback I see is that he would lose leverage to insist on hearings and a vote on his nominee, because the court would have all nine members, and he couldn’t easily accuse Republicans of obstructionism,” he told me.

If Obama does not make a recess appointment but instead tries to use political and media pressure to make the GOP Senate consider his nominee, Republicans might nonetheless find the recess power useful. If blocking an Obama nominee became truly unpopular with swing voters, the Senate could declare a recess in such a way as to give Obama the clear right to make a recess appointment. The Senate — which could be under either GOP or Democratic control — would then take up the issue again in 2017, when the recess appointment expires.

#related#But that scenario seems unlikely. Both sides are now clearly divided on ideological lines and their base voters will probably punish anyone inclined to compromise. “I believe that Obama will take the long view on this and not make a recess appointment,” Rappaport says. “He wants to shape the court for a generation rather than taking a chance on only having his appointee seated for less than two years.”

But President Obama could still surprise us and make a recess appointment before February 22. If he did, it would engender a fierce reaction and lots of controversy. But the battleground would shift from Congress to the courtroom as attorneys debated the legality of the president’s decision.

— John Fund is NRO’s national-affairs correspondent.

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