All 45 Republican senators co-signed an amicus brief filed Tuesday calling on the Supreme Court to curtail the President’s power to temporarily appoint nominees without the Senate’s approval.
“[R]ecess appointments have become a means to sidestep Senate confirmation,” the brief declared. “In any case, the President himself has made clear that he will resort to recess appointments, and indeed has done so, precisely to circumvent perceived Senate opposition.”
In January, a three-judge panel on the conservative-leaning D.C. Circuit Court of Appeals ruled that President Obama overstepped his constitutional authority when he recess-appointed three members of the National Labor Relations Board. The court decreed that the president may not recess-appoint nominees during pro-forma sessions, when the Senate tends to meet briefly, sometimes just for a few minutes, without holding debate or votes.
The Obama administration has appealed that decision; the Supreme Court has not yet decided whether to take the case.The GOP brief raises the stakes in an intensifying showdown over filibuster reform.
“The President’s decision to circumvent the American people by installing his appointees at a powerful federal agency while the Senate was continuing to hold sessions, and without obtaining the advice and consent of the Senate, is an unprecedented power grab,” said Senate Minority Leader Mitch McConnell. “We will demonstrate to the Court how the President’s unconstitutional actions fundamentally endanger the Congress’s role in providing a check on the excesses of the executive branch.”
Presidents of both parties have used the recess-appointment power to fill vacancies. But it has taken on a new meaning under Obama, because Republicans have sought to neuter agencies whose functions they oppose — such as the NLRB and Consumer Financial Protection Bureau — by seeking to filibuster all nominees to run them. The White House says the power is both constitutional and necessary to avoid a “significant disruption” in executive governance.
In April, the Obama administration asked the Supreme Court to review and overturn the D.C Circuit’s decision. “That decision repudiates understandings of the Recess Appointments Clause that have been maintained and relied on by the Executive for most of the Nation’s history,” wrote U.S. Solicitor General Donald Verrilli. “The limitations imposed by the court of appeals would render many of the recess appointments since the Second World War unconstitutional. The decision also threatens a significant disruption of the federal government’s operations.”
The lawyer representing Republicans in the case is Miguel Estrada, who President Bush nominated to serve on the D.C. Circuit Court of Appeals in 2001, and who was widely seen as being groomed by the GOP for the Supreme Court. But Democrats filibustered his nomination, citing his lack of judicial experience. He withdrew in 2003 and returned to private practice.