The Supreme Court on Monday waded into a major constitutional clash between President Barack Obama and congressional Republicans that could fundamentally limit a president’s use of recess appointments to fill high-level administration posts.
The justices will review a federal appeals court ruling that found Obama overstepped his authority when he bypassed the Senate last year to fill three vacancies on the National Labor Relations Board.
The case — to be decided next term — highlights the growing partisanship that has led GOP lawmakers to stall or filibuster several of Obama’s choices to head federal agencies that Republicans distrust. That includes nominees to the labor board, which has issued several union-friendly decisions, and the newly formed Consumer Financial Protection Bureau.
The Constitution gives the president the power to make temporary appointments to fill positions that otherwise require confirmation by the Senate, but only when the Senate is in recess.
At issue for the Supreme Court: What constitutes a congressional recess and does it matter when a vacancy occurs?
A three-judge panel of the U.S. Court of Appeals in Washington, D.C., held earlier this year that recess appointments can be made only during the once-a-year break between sessions of Congress. Two judges on the panel also ruled — for the first time — that a vacancy must occur while the Senate is away in order to be filled during the same break.
If the Supreme Court agrees, it would make it nearly impossible for a president to use the recess power, giving the opposition party in Congress the ability to block administration nominees indefinitely.
White House spokesman Jay Carney said Monday, “We are confident that the president’s authority to make recess appointments will be upheld by the courts.”
Obama has made relatively few recess appointments, 32 in his four-plus years in office, according to the Congressional Research Service. Bush made 171 such appointments and President Bill Clinton filled 139 posts that way in their eight years in office, the research service said.