ByÂ Stephen Dinan
WASHINGTON D.C. – For theÂ Supreme Court, whether President Obamaâ€™s recess appointments were legal could well rest on whether the justices side with Presidents Washington, Jefferson and Madison, or whether they stick with the 40 men who followed the founders.
The case theÂ courtÂ will hear Monday has all the makings of a legal thriller â€”Â CongressÂ battling the president, with theÂ Supreme Court, sitting for its first oral argument of 2014, called to settle the spat.
Itâ€™s also what lawyers call a â€œcase of first impression,â€ meaning the justices have never ruled on this particular question, so there is no firm precedent toÂ guideÂ them.
Making the issue all the more delicious for Washington are the accusations of power grabs and political hypocrisy: Mr. Obama, who is claiming broad recess powers, objected to those very same powers when he was in theÂ SenateÂ and Democrats used the same questionable tactics in 2007 and 2008 to block PresidentÂ George W. Bushâ€™s appointments.
â€œThree federal circuit courts of appeals have already ruled that the president violated the Constitution when he made so-called recess appointments while theÂ SenateÂ was in session, and now theÂ U.S. Supreme CourtÂ has an opportunity to guard against the dangers of an imperial presidency,â€ saidÂ Sen. Lamar AlexanderÂ of Tennessee, one of the Republicans who have pushed back the hardest againstÂ Mr. Obama.
The presidentâ€™s defenders say a ruling against Mr. Obama would be a recipe for gridlock on Capitol Hill, with senators free to delay or block a presidentâ€™s nominees and the chief executive with no way to circumvent them.
â€œIf theÂ Supreme CourtÂ rules against this power, important posts would remain unfilled for months at a time, adding to an already historic level of government dysfunction,â€ saidÂ David Earley, a lawyer at theÂ Brennan CenterÂ for Justice who just completed an analysis of the issues at stake.
TheÂ courtÂ has a few questions to answer: First, what vacancies can be filled by recess appointments? Second, what constitutes a recess for the purposes of using that power? And third, is itÂ CongressÂ or the president who determines when theÂ SenateÂ is meeting and when it is in recess?
When the founders wrote the Constitution, they gave the president the power to nominate top officials but granted theÂ SenateÂ the duty to approve them.Â AccountingÂ for long travel and expectingÂ CongressÂ to be in session only a few weeks or months of the year, the founders created a special exception â€” the recess appointment power â€” to let the president fill jobs, temporarily, whenÂ CongressÂ wasnâ€™t in town.
Now, with advancements in travel making it easy to return to Washington from anywhere in the country within a day, and withÂ CongressÂ almost always in session, the recess appointment power has become more of a way to bypass a reluctantÂ CongressÂ and fill key posts over the objections of senators.
The specific case before theÂ courtÂ is Noel Canning v. National Labor Relations Board. Noel Canning, a family-run bottlingÂ company, is suing to try to stop an adverse ruling from the NLRB, saying the board didnâ€™t have a true quorum because some of its five members were appointed illegally by Mr. Obama.
Mr. Obama named three members to the board in January 2012, just days after the 112thÂ CongressÂ began its second yearlong session. But theÂ SenateÂ was meeting every three days in pro forma sessions specifically designed to fulfill the requirement that the chamber wasnâ€™t in recess, thus trying to prevent the recess powers from taking effect.
The president ignored theÂ Senateâ€™s meetings. He argued that most lawmakers were out of town and theÂ SenateÂ wasnâ€™t functionally meeting and couldnâ€™t fulfill its duty to confirm nominees, so he could use his recess powers.
A federal court of appeals sided with Noel Canning and issued a stunningly broad ruling that said Mr. Obama and presidents for nearly the past two centuries have misread the Constitution.
Under theÂ appeals courtâ€™s ruling, the president can use his recess powers only afterÂ CongressÂ has adjourned for the year, and then can use them to make appointments only to positions that become vacant during that break.
If the ruling is upheld, it would invalidate nearly all appointments that have been made.
Michael McConnell, a former federal appeals court judge who is now director of the Stanford Constitutional Law Center, said the case is fascinating because the Constitution is fairly clear about when recess powers can be used, but presidents have circumvented those limits for nearly two centuries.
â€œI think the text is almost clear, and the early practice confirms that â€” the fact that the vacancy has to occur during the recess. The interesting thing there is the contrary practice began under Monroe. Thatâ€™s been a long time,â€ Mr. McConnell said. â€œItâ€™s the first instance I can think of where long-standing practice has been in disregard of pretty plain text corroborated by original practice.â€
That means to oppose Mr. Obama, the justices would have to overturn more than a century of practice.
Republican senators, led by Minority Leader Mitch McConnell of Kentucky, have joined the U.S. Chamber of Commerce and a host of political scientists, historians and lawÂ professorsÂ in arguing against Mr. Obama.
Liberal legal groups and unions have filed briefs supporting the president.
Writing at Slate.com,Â Eric Posner, a law professor at the University of Chicago, said the justices should forget about wading through the history of what the founders intended or what the early generations did.
He said Washington, Madison and others couldnâ€™t have foreseen the political party system, the growth of the government or the chances for obstruction in theÂ Senate, nor could they have predicted the communication and transportation advances that effectively have shrunk the country.
â€œIs the right way to resolve a 21st-century controversy to place the minutiae of the 1790s under a magnifying glass and ignore everything that came later? Whether you come down for or against Obama, surely the answer is no,â€Â Mr. PosnerÂ wrote.
LegalÂ analystsÂ said there are several other options for the justices should they choose not to want to settle the big historical questions.
One option would be to simply rule that pro forma sessions are legitimate meetings of theÂ SenateÂ for purposes of denying the president his recess powers.
Another option would be to find that the dispute constitutes a â€œpolitical question,â€ best left to the two political branches of government â€”Â CongressÂ and the president â€” and ultimately to voters.
Victor K. Williams, a clinical assistant law professor at Catholic University, says that if the court looks at Mr. Obamaâ€™s actions, it also would have to delve into theÂ Senateâ€™s obstruction.
â€œJudicial oversight of recess appointments is a blatant conflict of interest. TheÂ courtÂ should stay out of this political, partisan fight. Best just leave it to the elected political branches to fight out, and the ideological political interest groups to fight out,â€ Mr. Williams said at a Cato Institute preview of the Noel Canning case last week.