Justice Scalia implies the president is “self-interested,” hammers Obama attorney on recess appointments

By Joel Griffith
Solicitor General Donald Verrilli told Justice Antonin Scalia during oral arguments this week that while the Constitution’s clear limit on presidential powers “looks unambiguous to you,” it “has been the subject of contention… [and] thought to be ambiguous from the time of George Washington…to the present.”
Justice Scalia responded with wise sarcasm, clarifying, “It’s been assumed to be ambiguous by self-interested presidents.”
Essential to our system of government is the system of “checks and balances” incorporated within the United States Constitution. This system limits the role of the federal government to areas specifically delineated within the Constitution; and it dilutes even this limited federal power by assigning specific roles to the Executive, Legislative, and Judicial branches of the federal government. Furthermore, internal “checks and balances” within each branch safeguard our republic against the despotism and corruption emblematic of concentrated power.
Article 2, Section 2 of the United States Constitution explains the limits of presidential power. One of the most important responsibilities of the President is nominating and appointing ambassadors, judges of the Supreme Court, and all other “officers of the United States.” But this power is not without limit! The same clause within the Constitution dictates that the appointment of these nominated officials only goes into effect “by and with the advice and consent of the Senate.”

What does “advice and consent of the Senate” entail? It simply refers to the process by which senators question nominees and then vote as a body whether or not to “consent” to the appointment. If a presidential nominee fails to receive a majority of the votes, the appointment cannot be made. In so doing, the Legislative and Executive branches have a say in which individuals are “executing” the law of the land. The President recommends people for the various roles; the Senate must approve the President’s choices.
This seems straightforward. However, at the time the Constitution was drafted, Congress often was not in session. Once dispersed throughout the country, reassembling at the nation’s capitol could take weeks of travel by horseback. In the event that a vacancy occurred during such a time, the Constitution specifies, “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” Clearly, this exception to the “advice and consent” rule was not meant as an end-run around the safeguards against concentrated power. Rather, this exception guaranteed the federal government could operate smoothly in the event Congress was not gathered in Washington, D.C.
Over roughly the past 60 years, Presidents have successfully expanded the practical use of this exception. In effect, the exception now threatens to swallow the rule! Rather than abide by the limits of the Constitution, Presidents routinely make appointments when the Senate is merely in recess during the official session. In a further affront to constitutional governance, presidents have made “recess appointments” whether that vacancy happened “during the recess of the Senate” or existed beforehand.

The Supreme Court now appears ready to reign in this unconstitutional expansion of presidential power. Earlier this year, the United States Court of Appeals for the District of Columbia ruled that the president had improperly made three recess appointments to the National Labor Relations Board. The Court ruled that the recess appointment exception only applies during the “intersession recess” at the actual conclusion of the Senate session. The Court further ruled that the vacancy must come into existence during that intersession recess.
The Obama Administration is fighting back in its appeal to the Supreme Court. However, oral arguments at the Supreme Court this week indicate that the justices are highly skeptical of the Administration’s claims. As Justice Kagan stated, “This is not the horse-and-buggy era anymore. And that makes me wonder whether we’re dealing here with what’s essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended.”
One of the most disturbing, but crystallizing, exchanges occurred when Justice Scalia presented the Administration’s attorney with the following hypothetical: “Let’s assume that the text is clearly against you. Should I say, oh, yes, it – it says something else, but the practice for over 200 years has been something different and it’s the practice that must prevail?…Does the practice prevail over the clear text?” Mr. Verrilli replied, “The practice gives meaning to the Constitution.”
The rhetoric offered by Mr. Verrilli encapsulates the arrogance of the present Administration. Let’s hope the Supreme Court delivers a strong message that the President cannot change the clear meaning of the Constitution by disregarding it. We are a nation of laws and not of men. President Obama swore an oath to “preserve, protect, and defend the Constitution of the United States.” It’s time the former constitutional law professor take that oath seriously.