Senate decides when it is in recess
Nothing is more fundamental to the concept of checks and balances than the power for presidents to make executive branch nominations and the Senate to confirm them.
Judging by comments from the bench, President Barack Obama's argument that he has virtually unlimited authority to make executive branch appointments without U.S. Senate approval didn't go over too well Monday during U.S. Supreme Court arguments.
Justices' comments are never definitive. But they tend to show which way the court is leaning.
So it's a hopeful sign that Obama's claim that he can make recess appointments when he, not the Senate, says it is in recess will be rejected. Three federal appeals courts already have rejected Obama's claim, but the Supreme Court has the last word.
This case involves not only partisan politics, but the separation of powers among the executive, legislative and judicial branches of government. Under the U.S. Constitution, they are coequal.
Friction over presidential appointments is nothing new. Presidents make appointments while the Senate has the right to offer advice and consent. That means it also can withhold consent.
Frustrated over his inability to get three appointees to the National Labor Relations Board approved by the Senate, Obama used (or misused, depending on your point of view) his power to make three recess appointments on Jan. 4, 2012. The problem was that while the Senate was not conducting formal business, it was holding pro-forma sessions specifically designed to block Obama from using his recess power. The Senate did the same thing to block President George W. Bush from making recess appointments.
In other words, the Senate said it wasn't in recess; Obama said it was and the three appointees took office.
A Washington company challenged the NLRB's subsequent decisions on the grounds that the five-member board was not properly constituted. It argued that since the three recess appointees were improperly appointed, the NLRB's decisions do not have the force of law.
Presidents have been making recess appointments to fill executive positions on a temporary basis throughout our history. But it's basic to the concept that the Senate actually has to be in recess. That issue is for the Senate to decide, not the president. Giving any president the power to decide when the Senate is in recess and make appointments on that basis would vitiate the Senate's crucial role in the appointment process.
The issue seems basic — it shouldn't require the U.S. Supreme Court to say so. Nonetheless, a court decision affirming the Senate's authority to make its own decisions about when it's in and not in session would not just be welcome but a ringing defense of the U.S. Constitution's separation of powers.