The Supreme Court of the United States looks to close out its 2012-13 session this week for the summer. As a result, they will more than likely render a ruling on whether a chief executive can use his recess appointment powers to do an end run around the United States Senate when they return in October, following a summer break.
The Washington Times reports:
It also could rule more narrowly, finding that although the president has broad recess powers, he cannot use them while the Senate is meeting in pro forma sessions as a way to deny him that authority.
White House Press Secretary Jay Carney said, "We are confident that the president's authority to make recess appointments will be upheld by the courts."
Obama named union lawyer Richard Griffin and Labor Department official Sharon Block, both Democrats, and a Republican, NLRB lawyer Terence Flynn, to the labor board using his recess powers back in January of 2012. He also named Richard Cordray to head the new Consumer Financial Protection Bureau, using those same powers.
Back in January 2013, a Federal Court ruled that Barack Obama had broken the law on his recess appointments.
Article II, Section 2, Clause 3 of the United States Constitution reads:
"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
Obama attempted to justify his usurpation of the Constitution and cast the blame on the Senate. "When Congress refuses to act and as a result hurts our economy and puts people at risk, I have an obligation as president to do what I can without them," Obama said in January 2012. "I will not stand by while a minority in the Senate puts party ideology ahead of the people they were elected to serve."
"Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers," wrote the judges from the U.S. Court of Appeals for the District of Columbia Circuit. "An interpretation of 'the recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."
Though the Constitution say that the Senate is to give its consent to presidential nominations, the founders also understood that they should be engaged in short legislative sessions. As a result, they gave the chief executive the "power to fill up all vacancies that may happen during the recess of the Senate."
Though the appeals courts have ruled that the "recess" referred to in the Constitution is the period after Congress adjourns for the year, one of the courts went on to say that the president is to use those powers only for positions that become vacant during that recess and not ongoing vacancies such as the ones that Obama appointed.