And now at WSJ, "Justices Suggest Executive Practice Under Both Parties Has Exceeded Constitutional Limits" (via Google):
WASHINGTON—The Supreme Court seemed inclined to rein in the president's power to make "recess appointments" when the Senate is out of town, as justices on Monday suggested the practice under both parties had exceeded constitutional limits.
The Constitution grants the president power "to fill up all Vacancies that may happen during the Recess of the Senate," allowing appointees to serve temporarily without confirmation—including some whose prospects for Senate approval were unlikely.
But justices of all ideological stripes suggested Monday that a tool intended to keep the government running during the republic's early days had morphed over the centuries into a weapon to be wielded in power struggles between Congress and the White House.
"This is not the horse-and-buggy era anymore," said Justice Elena Kagan. "And that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended."
Solicitor General Donald Verrilli, representing President Barack Obama's administration, acknowledged as much. Presidents no longer use the power to make recess appointments because senators are unreachable, he said, but rather as a "safety valve" to counteract Senate "intransigence" in refusing to confirm nominees.
Before the 1940s, the Senate rarely took recesses within its formal "sessions," which typically last about a year. After that practice began, Mr. Verrilli said, presidents began making such "intrasession" recess appointments, and a "stable equilibrium" between Senate and White House developed. The administration asks only that the court restore the "status quo," he said.
That was upended in January 2013, when the U.S. Court of Appeals for the District of Columbia Circuit ruled that the constitutional text must be read far more strictly, with "the Recess" meaning only the period between formal "sessions" of the Senate, rather than whenever the body takes a break.
Moreover, the appeals court found the president could use this limited power only when a vacancy occurred during the intersession recess itself—not to fill a job that was open before the Senate left town.
The case came from a Pepsi bottler in Yakima, Wash., the Noel Canning unit of Noel Corp., which contested a National Labor Relations Board ruling against it on grounds that three of five NLRB members held invalid recess appointments.
Justice Samuel Alito asked Noel Canning's lawyer, Noel J. Francisco, if 200 years of practice, even if unsupported by the constitutional text, should carry weight with the court.
No, Mr. Francisco replied.
An attorney representing Senate Minority Leader Mitch McConnell (R., Ky.), Miguel Estrada, argued in support of Noel Canning's position. He said the case boiled down to "who gets to decide whether the Senate is in recess, the Senate or the president?"
Recess appointments have grown increasingly contentious since the administration of George W. Bush, with opposition lawmakers taking steps during vacations to keep the Senate technically in session, such as by calling an empty chamber to order and immediately adjourning. A flashpoint came in January 2012, when Mr. Obama recess-appointed three members to the labor board, which otherwise couldn't function for lack of a quorum.
As of last week, there were 108 pending cases in federal appeals courts challenging NLRB decisions by questioning the validity of the January 2012 recess appointments. An additional 35 pending cases challenge decisions made during the tenure of a previous Obama recess appointee in early 2010.
Also in question are hundreds of decisions made by the NLRB recess appointees that haven't risen to federal appeals courts, including rulings that protect workers from being fired for complaining about workplace conditions on websites like Facebook.
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