In an extended argument that contained large doses of constitutional history and practical politics, the Supreme Court on Monday seemed skeptical of the Obama administration’s contention that it could bypass the Senate to appoint officials during short breaks in the Senate’s work.
Justices across the ideological spectrum appeared prepared to rein in the ability of presidents to make appointments without obtaining the Senate’s advice and consent by invoking the Constitution’s recess-appointments clause, which says “the president shall have power to fill up all vacancies that may happen during the recess of the Senate.”
Justice Elena Kagan said the clause may be a “historic relic” from “the horse and buggy era,” when presidents needed the authority to fill vacancies because lawmakers were out of town and could not return on short notice. More recently, she said, presidents of both parties have used the appointment power “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 suggested that the new use of the clause was problematic.
Justice Stephen G. Breyer said he had scoured the historical and legal materials. “I can’t find anything,” he said, “that says the purpose of this clause has anything at all to do with political fights between Congress and the president.”
The problem of congressional absence no longer exists, Justice Ruth Bader Ginsburg said. “The Senate — I think to be candid — the Senate is always available,” she said. “They can be called back on very short notice.”From the oral argument:
JUSTICE SCALIA: What do you do when there is a practice that --that flatly contradicts a clear text of the 10 Constitution? Which --which of the two prevails?
GENERAL VERRILLI: Now, I think the practice has to prevail, Your Honor, but I do --and I
JUSTICE SCALIA: So if you ignore the Constitution
GENERAL VERRILLI: But I don't think
JUSTICE SCALIA: --often enough, its meaning changes?
GENERAL VERRILLI: But, Your Honor, of course, in this situation, the meaning of the clause with respect to the timing of --of the vacancy has been a matter of contention since the first days of the Republic.
JUSTICE SCALIA: Now, you're --you're questioning my hypothesis. You have to accept my hypothesis.