If reports are correct, President Obama could soon face a big test of his presidential authority.
In oral arguments at the Supreme Court, the justices "seemed skeptical of the Obama administration's contention that it had acted properly in bypassing the Senate to appoint several officials during a break in the Senate's work," the New York Times reports.
"Several justices seemed attracted to the relatively narrow argument that President Obama had acted during a break in the Senate's work that was too brief to allow a recess appointment. Others spoke in favor of a much broader argument that would limit such appointments to recesses between sessions of Congress."
SCOTUSblog points out, "Even some of the justices whose votes the government almost certainly needs to salvage an important presidential power were more than skeptical."
The biggest challenge for the court is to reconcile the text of the U.S. Constitution to the political tradition practiced over two centuries. Presidents have made over 150 such civilian appointments over the years in addition to thousands of military appointments.
Justice Elena Kagan worried that the court might throw out hundreds of years of tradition, but noted as well that "it was the Senate’s job to decide" when it goes out on recess, thus giving it the ability to control when, or if, the president may make such appointments.
Chief Justice John Roberts piled on by pointing out that the Senate has "an absolute right to refuse" to approve any of a president’s nominees — for any reason.
The stakes are extremely high. Wonk Wire notes that if Obama’s recess appointments are ruled unconstitutional, thousands of other such appointments made over the years by other presidents would be called into question.