Recess Appointments, SCOTUS at Odds    12/02 06:17

   

   WASHINGTON (AP) -- Republicans will control the White House and both houses 
of Congress come January. But President-elect Donald Trump's intent to nominate 
loyalists to fill key Cabinet posts has set up a possible confrontation with 
the Senate, which has the constitutional responsibility for "advice and 
consent" on presidential nominees.

   Trump and his Republican allies are talking about going around the Senate 
and using temporary recess appointments, which last no more than two years.

   Invoking that authority could result in a fight that lands at the Supreme 
Court. Trump might also have to claim another, never-before-used power to force 
the Senate into a recess, if it won't agree to one.

   Supreme Court has decided only one recess appointment case

   In its 234 years, the Supreme Court has decided only one case involving 
recess appointments. In 2014, the justices unanimously ruled that Democratic 
President Barack Obama's recess appointments to the National Labor Relations 
Board were illegal.

   But they disagreed sharply over the reach of the decision. Five justices 
backed a limited ruling that held the Senate wasn't actually in recess when 
Obama acted and, in any event, a break had to be at least 10 days before the 
president could act on his own.

   Justice Antonin Scalia, writing for the other four justices, would have held 
that the only recess recognized by the Constitution occurs between the annual 
sessions of Congress, not breaks taken during a session. That would have ruled 
out the appointments Trump may be considering after the new Congress begins in 
January and he is sworn into office.

   Conservatives' previous rulings may offer clues

   Just two justices, Elena Kagan and Sonia Sotomayor, remain from the 
five-justice bloc that took the view that preserved the president's power to 
make recess appointments during a session of Congress. Three others, John 
Roberts, Clarence Thomas and Samuel Alito, joined the Scalia opinion that would 
have made it virtually impossible for any future president to make recess 
appointments.

   The rest of the court has become more conservative since then, a result of 
Trump's three high court appointments in his first term. Justices Neil Gorsuch, 
Brett Kavanaugh and Amy Coney Barrett have no record on this issue, which 
rarely arises in the courts. Nor does Justice Ketanji Brown Jackson, a 2022 
appointee of Democratic President Joe Biden.

   There is tension between respect for precedent and original meaning

   A more conservative Supreme Court might come out differently today, though 
it's by no means certain. Once the court decides a case, the ruling is regarded 
as precedent that is not lightly discarded. So even some justices who initially 
dissent from a ruling will go along in later cases on a similar topic.

   Scalia, an icon of the right, applied his originalist approach to the 
Constitution to conclude that there was little doubt what the framers were 
trying to do.

   The whole point of the constitutional provision on recess appointments, 
adopted in 1787 in the era of horse and buggy, was that the Senate could not 
quickly be summoned to fill critical vacancies, he wrote.

   Reading a summary of his opinion aloud in the courtroom on June 26, 2014, 
Scalia said the power to make recess appointments "is an anachronism."

   The Senate always can be convened on short notice to consider a president's 
nominations, he said.

   "The only remaining practical use for the recess appointment power is the 
ignoble one of enabling presidents to circumvent the Senate's role in the 
appointment process, which is precisely what happened here," Scalia said.

   How could the issue return to the high court?

   It's not likely to happen quickly. Only someone who has been affected by an 
action taken by an official who was given a recess appointment would have the 
legal right, or standing, to sue. In the NLRB case, Obama made his recess 
appointments in January 2012.

   The board then ruled against Noel Canning, a soft drink bottling company in 
Yakima, Washington, in a dispute over contract negotiations with a local 
Teamsters union. The company sued, claiming that the NLRB decision against it 
was not valid because the board members were not properly appointed and that 
the board did not have enough members to do business without the improperly 
appointed officials.

   The Supreme Court's ultimate decision came nearly 2 1/2 years later.

   Who's who among recess appointments

   Among the most prominent people who were first given recess appointments and 
later confirmed by the Senate are Chief Justice Earl Warren, Justice William 
Brennan and Federal Reserve Chairman Alan Greenspan. Among those who left 
office after failing to win a Senate vote is John Bolton, who was given a 
recess appointment as U.N. ambassador under Republican President George W. Bush.

   Trump could try to force a congressional recess

   A separate novel legal issue could arise if Trump were to invoke a 
constitutional provision that his allies suggested would allow him to force the 
Senate to adjourn, even if doesn't want to, and enable him to make recess 
appointments.

   Article II, Section 3 of the Constitution includes a clause about 
congressional adjournments that has never been invoked. Trump's allies read it 
as giving the chief executive the power step in when the House and Senate can't 
agree on when to adjourn. The provision reads that "in case of disagreement 
between them, with respect to the time of adjournment, he may adjourn them to 
such time as he shall think proper."

   But some scholars, including conservative ones, argue that the House has no 
power to force the Senate to adjourn, and vice versa. Congressional 
adjournments are spelled out in Article I, which requires one chamber to 
consent when the other wants to take a break of more than three days. Under 
this view, the president could intervene only when one house objects to the 
other's adjournment plan.