Richard Wolf, USA TODAY
WASHINGTON -- President Obama and his successors in the White House appear likely to lose a landmark Supreme Court case on presidential appointments power.
A majority of the high court's justices expressed skepticism Monday about presidents' claim that they can make appointments without Senate approval by claiming lawmakers are in recess.
But the justices didn't seem likely to go as far as a federal appeals court did last year in striking down nearly all recess appointments under the guise of a strict reading of the Constitution.
Perhaps sensing a lost cause, Solicitor General Donald Verrilli argued vigorously that presidents must be able to fill out their administrations when the Senate is only holding "pro-forma" sessions every three days, as it has done in the last few years to block such appointments. But justices named by Democratic and Republicans presidents saw things differently.
"You're latching on to the recess appointments clause as a way to combat that intransigence," said Chief Justice John Roberts, a George W. Bush nominee. The power of the president, he said, is intended to be used when the Senate is gone, not aggrieved.
"It really is the Senate's job to determine whether they're in recess or whether they're not," said Justice Elena Kagan, who was nominated by Obama.
The importance of the epic balance-of-powers battle was evident by the packed courtroom. Several seats apart in the second row were Senate Republican leader Mitch McConnell, Obama's chief adversary in the Senate, and White House press secretary Jay Carney.
"The court today was rightly skeptical of the solicitor general's inconsistent argument that the Senate is in session if the president wants it to pass legislation he supports, but the Senate is not in session if he wants to circumvent the advice and consent requirement of the Constitution," McConnell said, interpreting the justices' leanings.
But Carney wouldn't concede defeat. "We are confident the court will uphold the president's authority," he said.
While clearly siding with the Senate on its ability to use pro-forma sessions to avoid recessing, the justices appeared likely to rule for the administration on at least one or both of the other issues: whether recess appointments can only be made during the single break between annual legislative sessions, and only when the vacancies occur during those periods.
That was the strict reading of the Constitution upheld by the U.S. Court of Appeals for the D.C. Circuit last year. But Verrilli argued that such an interpretation would render impotent the president's recess appointments power and throw into question thousands of appointments dating back to the presidency of George Washington.
The debate focused on balancing that long history -- during which presidents frequently appointed officials while the Senate was out of town -- against the precise words in the Constitution. At times, the justices and litigators quarreled over the meanings of the words "the" and "happen."
"This court has never shied away from enforcing the strictures of the Constitution simply because it could have some impact on prior cases," argued Noel Francisco, the attorney representing Pepsi bottler Noel Canning, which had contested a 2012 decision of the National Labor Relations Board dominated at the time by Obama's recess appointees.
But Justice Stephen Breyer and other justices noted a long history of presidents making recess appointments. "Over time, language in the Constitution takes on a somewhat different meaning," he said.
The battle pits Obama's appointments of labor and financial watchdogs against Senate Republicans' unprecedented efforts to block or delay his nominations. In the long run, however, it's not a partisan issue. It pits all presidents against Congress, and common practices against the Constitution.
After enduring three years of Republican obstruction, Obama opened 2012 by naming three members to the labor board and a new consumer protection czar while the Senate was gaveling in and out every three days without conducting any business.
Obama said the Senate was in recess. Under the Constitution, presidents can fill vacancies during recesses for up to two years without Senate confirmation.
That interpretation was challenged by Miguel Estrada, a prominent appellate litigator representing McConnell whose nomination by Bush to the federal bench was blocked by Senate Democrats.
"On each of the disputed dates, the Senate was called to order and then adjourned," Estrada said. "It is an official record of the Senate. It says, 'the Senate was called to order and then adjourned.' It doesn't say, 'two guys who happened to be senators met at a bar and had a beer.'"
Several justices noted the recess appointments power was more pertinent when senators left town on "horseback," as Justice Ruth Bader Ginsburg said. Today, presidents can demand a hasty return by ordering Congress back into session.
"This is not the horse-and-buggy era anymore," Kagan said. If the court rules that such three-day breaks are really recesses, she added, the Senate simply could get around that by conducting some business, such as naming post offices.
And Justice Anthony Kennedy, a frequent swing vote on the court, said the Obama administration's argument is "in search of a limiting principle." If three-day breaks are cause for recess appointments, he said, how about lunch breaks?
The fight has been diffused somewhat by Democrats' Senate rules change in November, which stopped a minority of senators from being able to block executive branch and judicial nominations.
But the battle will be rejuvenated whenever presidents and Senates are controlled by opposite parties. That's a situation faced by all recent presidents, who have used the recess appointments power to circumvent lawmakers when necessary.
Ronald Reagan made 232 recess appointments. Bill Clinton and George W. Bush each made well more than 100. Obama, to date, has made only 32.
If the court rules for the Senate, presidents' freedom to make appointments during congressional recesses will be sharply limited, Verrilli warned. "That's the end of the recess appointment power," he said.