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Obama’s use of executive power faces reckoning at Supreme Court

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(The Hill) – Nothing less than the boundaries of executive power are at stake Monday as the Supreme Court considers whether President Obama violated the Constitution during his first term.

Oral arguments slated for Monday will center on a trio of recess appointments to the National Labor Relations Board (NLRB) that were deemed unconstitutional by lower courts.

If they uphold the decision, experts say the justices could endanger hundreds of NLRB decisions.

Even more significant are the ramifications for future presidents, with the court poised either to bolster or blunt the chief executive’s appointment powers.

“Rulings like this have implications that last for centuries,” said Michael Lotito, an employment and labor attorney and co-chairman of Littler Mendelson’s Workplace Policy Institute.

Presidents have for decades used recess appointment powers when the Senate is away to install judges and fill top federal vacancies that ordinarily would be subject to confirmation proceedings.

But with the disputed NLRB appointments, Obama became the first president to appoint nominees when the Senate was in a “pro-forma” session, when the upper chamber is briefly called to order and adjourned every few days.

The sessions are intended to prevent recess appointments, and usually only a handful of senators are present for them. In filling the NLRB posts, the Obama administration claims that the Senate is generally not available to conduct business during the sessions, so the president’s recess appointment power is in effect.

“The sham pro-forma sessions are nothing more than that,” said Catholic University law professor Victor Williams, who filed a brief backing the government’s position.

The impetus for recess appointments has faded now that Senate Democrats have changed their chamber’s rules to allow for a simple majority vote on presidential nominees. Nevertheless, the case could stunt Obama’s and future presidents’ authority when it comes to staffing administrations.

The case was brought by Noel Canning, an Oregon-based soft drink bottling and distribution company that challenged the appointments as unconstitutional.

In January of last year, the D.C. Circuit Court of Appeals agreed.

The appellate court ruling under now review at the Supreme Court found a narrow window for the president to make recess appointments. Under its decision, the president can only make such appointments when the Senate is in recess between sessions of Congress, and only if a vacancy occurred in that same time period.

That goes well against protocol adopted by past Democratic and Republican presidents. A Congressional Service Research report found 329 such appointments since 1981 that would not meet that criteria and would be ruled void if the appeals court decision was law.

Some see the fight against the labor board as a broader effort in which opponents have sought to stymie the Obama administration’s rules and regulations.

“I think the battle against the NLRB over the last few years has been a proxy war about the proper role and scope of government,” said Wilma Liebman, who served as chairwoman of the NLRB from January 2009 to August 2011.

The obscure agency has become ground zero in that war, pitting business against labor and Republicans against Democrats.

The private sector mobilized a massive lobbying campaign after Obama’s election, fearing a Democratic president might enact a host of policy changes favorable to unions.

The effort first targeted legislation that would ease union organizing, but shifted to the NLRB nominees and its decisions.

“There has been an especially rancorous degree of controversy whipped around the NLRB. It got swept up with the Employee Free Choice Act,” Liebman said.

The NLRB has had its decisions overturned by the high court before. In 2010, the Supreme Court found the board lacked the authority to make decisions for more than two years because it only had two members — one short of a quorum.

About 600 NLRB decisions were made in that time period, and the board was forced to go back through about 100 of them.

Liebman said it was a time-consuming process, but one the labor board could do again.

“We issued new decisions in a relatively short period of time. We had a process in place and went methodically back through them,” Liebman said. “It took some time that we could have spent doing other things. It wasn’t the end of the world.”

But having to turn its focus on previous decisions could sidetrack the NLRB from what is seen as an activist agenda at a critical moment, said Lolito, whose firm represents employers.

The board is now at full strength for the first time in years, and was expected to tackle numerous issues involving union elections.

“If this board has to spend the next good couple of years looking backward instead of forward, many in the employer community would say that’s good news,” he said.

In Monday’s arguments, attorneys with the U.S. Chamber of Commerce will argue on behalf of Noel Canning that the NLRB operated without a quorum for well over a year, causing confusion for both employers and employees.

“We look forward to the much needed clarity that the Supreme Court’s decision will bring,” said Lily Fu Claffee, the Chamber’s general counsel.

The Obama administration’s case hinges on winning three points, according to Georgetown University Law Center’s Nicholas Quinn Rosenkranz, who is arguing against the government.

First, it must convince the justices that presidents may make appointments during regular recesses and not, as the appeals court ruled, only during the breaks between numbered sessions on Congress.

Next, the court must agree that the appointments may include the filling of vacancies that existed before the recess began, rather than those that occurred during a recess.

Finally, it must conclude that the pro-forma sessions do not count as formal sessions of Congress.

Proving all three points, particularly the last, would be a tall order, said Rosenkranz, who predicted a 9-0 ruling in favor of Noel Canning.

“I don’t think this is a close case,” he said.

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