Thursday, April 25, 2013 5:21 pm
Justice Dept. appeals recess case to Supreme Court
By SAM HANANELAssociated Press
In a petition seeking review, the Justice Department said the decision undermines a key presidential power that has been used for more than a century to appoint hundreds of government officials while the Senate is out of town.
The government asked the high court "to remove the resulting constitutional cloud over the acts of past and present recess appointments and to restore the president's capacity to fill vacant offices temporarily when the Senate is unavailable to give its advice and consent."
If the Supreme Court agrees to hear the administration's appeal, it is unlikely to hear arguments until the next term begins in October.
The petition challenges the decision of a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, which ruled in January that President Barack Obama violated the Constitution when he bypassed the Senate to fill three vacancies on the National Labor Relations Board. Since then, Republicans have claimed the board lacks any legitimacy to act.
But the ruling went far beyond a single agency. The court said 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 actually occur while the Senate is away in order to be filled during the same break.
If it stands, the government argues, the decision would mean that more than 500 recess appointments made by Republican and Democratic presidents alike since 1867 were invalid. It would threaten all 32 recess appointments that Obama had made during his presidency, including that of Richard Cordray to head the Consumer Financial Protection Bureau.
The lower court ruling conflicts with other appeals courts and could threaten hundreds of opinions issued by the labor board and a host of other federal agencies, the petition argued. It would also "allow the Senate to disable the president from making recess appointments even when the Senate is unavailable to give its advice and consent." And it "creates periods of potentially significant duration in which there is no power to fill vacant offices, not even temporarily, no matter how long the recess or how great the need that an office be filled," the petition said.
Business groups and Republican lawmakers challenging Obama's recess appointments have said they welcome the chance for the Supreme Court to rule on the case. Don Stewart, a spokesman for Senate Republican Leader Mitch McConnell of Kentucky, said his boss remains confident the Supreme Court will affirm the ruling.
Obama made the recess appointments last year to keep the labor board functioning after Senate Republicans protesting what they said was the agency's pro-union tilt vowed to block any of his future nominees from being confirmed.
The president recently asked the Senate to confirm a package of three Democrats and two Republicans to fill the five seats on the labor board. Two of those nominees are currently sitting on the board as recess appointments.
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