Supreme Court Poised to Strip Obama of Right to Bypass Senate on Appointees

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Elena Kagan with Obama and Biden
Elena Kagan with Obama and Biden

For more than 200 years, U.S. presidents have waited until Congress was on recess to bypass the Senate and make Cabinet appointments, but the Supreme Court appears on the verge of stripping President Obama of this authority.

Based on the tenor of the justices’ questions and aggressiveness toward U.S. Solicitor Gen. Donald Verrilli Jr. during yesterday’s oral arguments in the case, the court appeared to be skeptical of granting Obama the right to bypass the Senate by saying its brief break amounts to a recess.

The Obama administration believes a long list of nominees to agencies and courts in recent years have been blocked by Republican filibusters for political reasons, while the GOP counters that Democrats did the same thing to President George W. Bush.

As a result, little gets moved along. Appointees languish for many months. Vacancies go unfilled.

Secretary of State John Kerry just sent a letter to the Senate last week, complaining that a backlog in the confirmation of State Department nominees “is impacting our national security and weakening America’s role into the world.”

Kerry, who has been on the job for a year, still has more than two-thirds of his leadership team vacant as there are 58 State Department nominees pending before the Senate.

But such real-world considerations are unlikely to sway the court. Even liberal Obama appointee Elena Kagan seemed skeptical of the administration’s arguments. Kagan said the recess-appointment power is “a historical relic,” designed for an era when lawmakers could be gone from Washington for months.

“This is not the horse-and-buggy era,” she said.

The case centers around President Obama’s decision in 2012 to unilaterally appoint three new members of the National Labor Relations Board without Senate approval. A frustrated Obama ignored the fact that the Senate did not consider itself in recess.

Things have gotten even worse in the Senate since then, with the Democrats last November finally voting to unilaterally do away with the 60-vote majority needed to consider all executive and judicial nominees, except those for the Supreme Court. Long described as the “nuclear option,” the move takes away from the minority party the ability to oppose most nominations.

In retaliation, Republicans are moving even slower on the president’s legislative agenda—proving for the millionth time that Congress is too dysfunctional to get anything done.

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