Supreme Court Questions Obama's Recess Appointments

Supreme Court justices suggested they may curb the president’s power to make temporary appointments without Senate approval, as the court took up a constitutional standoff between the White House and congressional Republicans.

Hearing arguments today in Washington, justices across the ideological spectrum questioned whether President Barack Obama legally appointed three members of the National Labor Relations Board. The case is the court’s first look at the constitutional provision that lets the president make temporary appointments to high-level posts during U.S. Senate recesses.

A company facing NLRB sanctions, backed by Senate Republicans, says the chamber wasn’t in a recess when Obama made the appointments. Several justices today suggested they accepted that characterization.

“It really is the Senate’s job” to determine whether the chamber is in recess, said Justice Elena Kagan, one of Obama’s two appointees to the high court.

At stake is the scope of a power the Obama administration says has been used thousands of times since the country’s founding. A broad ruling against Obama might all but nullify the recess appointment power.

The case also may affect 1,000 decisions and orders issued by the NLRB since January 2012, when Obama made the appointments. Those include one before the justices involving soft-drink bottler Noel Corp. of Yakima, Wash.

The case stems from a 2011-2012 dispute. Facing the prospect that Obama would make appointments during Congress’s holiday break, House and Senate Republicans refused to formally adjourn. The Senate held “pro forma” sessions that sometimes involved a single senator’s brief appearance in the chamber about every third day.

Obama appointed the NLRB members, along with Richard Cordray as director of the Consumer Financial Protection Bureau, in January 2012.