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Analysis: Weighing power among branches, U.S. court could tip against president

U.S. President Barack Obama gestures while addressing his first news conference since his reelection, at the White House in Washington Novem
U.S. President Barack Obama gestures while addressing his first news conference since his reelection, at the White House in Washington Novem

By Joan Biskupic

WASHINGTON (Reuters) - When a prominent U.S. appeals court last year slashed President Obama's power to appoint government officials, many legal experts said the Supreme Court would be unlikely to let that surprising decision stand.

But that view may underestimate the allure of the lower court's reasoning to the dominant, conservative wing of the high court, which takes up the case Monday.

In its January 2013 ruling involving "recess appointments" to a key regulatory agency, the U.S. Court of Appeals for the D.C. Circuit repeatedly invoked the nation's early history and a literal reading of key constitutional terms.

Such an "originalist" approach in the past persuaded the court under Chief Justice John Roberts to take bold action. In 2008, for example, the court for the first time endorsed an individual right to own guns, based on the early history of the Second Amendment. Conservatives controlled that 5-4 decision.

The new case, National Labor Relations Board v. Noel Canning, revolves around the president's power to appoint top officials with the "advice and consent" of the Senate. A "recess appointments" clause in the Constitution supplements that power by letting the president make temporary appointments when the Senate is not in session.

Judge David Sentelle, who wrote the D.C. Circuit opinion, said the recess-appointment power can be exercised only between defined sessions of Congress, not during breaks within a session, as commonly occurs, and that a president could fill only those vacancies that arise after Congress has recessed.

That interpretation conflicts with the practices of most presidents and Senates -- Democrat and Republican - over the past century.

In its appeal, the Obama administration warned that the D.C. Circuit opinion "would eviscerate" the president's appointment power and "dramatically upset" the equilibrium between political branches.

While that remains to be seen, the outcome of the case would affect the president's ability to make certain recess appointments, whether for urgent vacancies or to seat long-stalled nominees. The disputed labor-board vacancies had been caught up in partisan wrangling, and Obama's action was a move around Senate inaction.

GROUNDED IN HISTORY

Judge Sentelle's reliance on originalist interpretations could particularly influence Justices Antonin Scalia and Clarence Thomas, who among the nine justices search most for the original understanding of the Constitution's drafters.

To back up his view that only vacancies arising during a recess are covered, Sentelle cited a leading dictionary from the 18th Century and said George Washington understood the recess appointments power to extend only to such vacancies.

Sentelle also repeatedly cited the Roberts' Court's seminal 2008 Second Amendment ruling, District of Columbia v. Heller. In that decision, the other conservatives, Roberts and Justices Anthony Kennedy and Samuel Alito joined with Scalia and Thomas.

The notion that the D.C. Circuit judgment was grounded in history and tradition was advanced forcefully in briefs submitted to the justices by lawyers for Noel Canning, the soda-bottling company challenging the labor-relations board appointees, and by two groups of leading conservative law professors.

A group of professors led by Stanford Law Professor Michael McConnell takes issue, for example, with an administration claim that President Washington made at least two recess appointments to fill vacancies that had first arisen before recesses began.

McConnell, a former U.S. appeals court judge, counters with documents from President Washington to the Senate that the brief says demonstrate that the two vacancies actually arose during the recesses.

McConnell also argues that only in recent decades has it become commonplace for presidents to make "recess appointments" to vacancies occurring earlier during a session -- as opposed to during the formal recess break.

As the dueling parties argue over artifacts of history, administration lawyers highlight an opinion written by Attorney General William Wirt in 1823 that would support filling vacancies that arose before a recess. The challengers contend subsequent attorneys general opinions are at odds with that.

Such contradictory interpretations of history and constitutional text arise regularly in Supreme Court cases, and it will fall to the justices to resolve the conflict.

Washington lawyer John Elwood, a former Bush Justice Department official who has focused on recess-appointment powers, said supporters of upholding the D.C . Circuit have "assembled significant evidence" that the drafters of the Constitution and early presidents believed an office must fall vacant during the recess to be subject to a recess appointment.

"The originalist case ... is more powerful than I thought beforehand," Elwood said.

Yet, Elwood, like other legal analysts, is still hedging his bets on how the justices will rule - particularly because while the Roberts Court has shifted to the right, it is also known for incremental moves.

One narrow way to resolve the case would be tied to a secondary issue: whether a president's recess-appointment power extends to when the Senate is convening in "pro forma" sessions every three days. In such sessions, no business is conducted and often only a single senator is present. The Senate, in fact, has used such recurring short meetings to try to avert presidential appointments.

When President Obama made the disputed appointments on January 4, 2012, the Senate was holding a series of pro forma sessions with intervening three-day recesses.

If the justices turn to that narrow question of the validity of pro forma sessions - which the Obama administration argues cannot become a tool to prevent "recess" appointments - they would avoid a more sweeping decision.

The D.C. Circuit declined to address the question of how pro forma sessions of the Senate may affect a president's appointment power. But the justices themselves added it to their agenda when they agreed to take up the case -- perhaps signaling an interest in avoiding a more contentious fight over separation of powers.

(Reporting by Joan Biskupic; Editing by Eric Effron)

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