WASHINGTON -- The Supreme Court is expected to take up a groundbreaking separation-of-powers case later this month that features a constitutional clash between the presidents right to make recess appointments and the Senates authority to confirm high-level picks.
All 45 Republican senators are asking the high court to uphold two recent federal appellate decisions that President Barack Obama acted unconstitutionally in naming three people to the National Labor Relations Board in January 2012 when the Senate wasnt in full recess.
The president is circumventing the Constitution and its system of checks and balances, Sen. Jim Risch of Idaho said in a statement last week.
Obama says he followed a long tradition in which presidents going back to George Washington have bypassed the Senate by making judicial and executive branch appointments when it wasnt in session.
Such actions, called recess appointments, have come under scrutiny as presidents sometimes have used the process to name controversial appointees. Beyond constitutional issues, the case reflects the increased polarization in Washington.
Democrats blocked some nominees of President George W. Bush and Republicans have impeded Obamas choices, refusing to hold votes on them and keeping the Senate open in formal session when lawmakers go home in bids to prevent him from making recess appointments.
When Democrats started using the stay-in-session maneuver against Bush in April 2007, he stopped making recess appointments. Hed made 171 of them during his first six-plus years in office.
Obama resumed the practice of making recess appointments when he took office in January 2009, and while hes made only 32, he hasnt stopped. While Democrats control the Senate, both parties must agree to a recess, and Republicans have refused to do so.
What this case really encapsulates is the breakdown of the American system of government, said Sanford Levinson, a University of Texas law professor. The Senate doesnt play fair, and now Obama doesnt play fair. The same thing happened during the Bush administration.
Legal analysts say the Supreme Court probably will accept the case June 20 because federal appeals courts in five circuits across the country have issued contradictory rulings on how much leeway a president has to decide when the Senate is in recess.
The high court probably wouldnt hear arguments until October at the earliest.
From 1962 to 2004, three circuit courts ruled that Presidents Dwight Eisenhower, Jimmy Carter and George W. Bush had legally exercised their constitutional power to make recess appointments.
Then, in January and again in May of this year, two circuit courts said Obama had overstepped his bounds and impinged on the Senates constitutional advise-and-consent power to confirm senior appointments.
Its almost inconceivable that they wont take this case up, Levinson said of the high court justices. It has major consequences for the administration of the modern American state.
At immediate stake are more than 200 actions by the National Labor Relations Board since Obama made his appointments in January 2012.
Already, one of the circuit courts that ruled against Obama has frozen implementation of the agencys actions pending expected Supreme Court review, and dozens of firms have sued seeking reversals of earlier NLRB rulings against them.