Top court looks at president's power to appoint

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WASHINGTON -- Many federal decisions hung in the balance Monday as Supreme Court justices wrestled with a case that involved the appointments made by presidents during a congressional recess.

In a high-stakes constitutional fight, justices from both right and left sounded skeptical about the Obama administration's reasoning in making so-called "recess appointments" to the National Labor Relations Board. If the appointments are deemed invalid, myriad board decisions resolving labor disputes would be cast into doubt, while presidential clout overall would be curtailed.

"You are making a very, very aggressive argument on behalf of executive power," Justice Samuel Alito warned Solicitor General Donald Verrilli Jr. "You're just saying when the Senate acts, in your view, irresponsibly, and refuses to confirm nominations, then the president must be able to fill those positions."

The court on Monday also handed a setback to abortion opponents, refusing to revive an Arizona law that would have generally banned the procedure once a woman's pregnancy reached the 20-week point.

The justices rejected the state appeal, leaving intact a lower-court ruling that struck down the measure, which made exceptions only to avert death or serious health risk to the mother. The rebuff leaves 12 other states' similar laws legally uncertain.

The disputed NLRB appointments at the heart of Monday's arguments were made during a brief Senate session that President Barack Obama essentially called a ruse. If the court agrees with the Senate that it actually was not in recess, then Mr. Obama didn't have the power to unilaterally make appointments.

Multiple justices stressed that it's Congress, not the White House, that gets to decide when Congress is in recess. "It really is the Senate's job to determine when it's in recess and when it's not," said Justice Elena Kagan, an Obama nominee.

The 90-minute oral argument Monday morning was the court's first in 2014, and it combined the archaic with the contemporary. It featured justices citing 18th-century dictionaries and an early congressional manual penned by Thomas Jefferson, playing out before an audience that included White House press secretary Jay Carney and Senate Minority Leader Mitch McConnell, R-Ky.

Technically, the case called National Labor Relations Board v. Noel Canning will force the court to decipher the meaning of a word like "happen." Practically, justices must also sort through the real-world implications of a decision to overturn presidential appointments.

"There are many dozens of board decisions, and perhaps many hundreds of board decisions, that are under a cloud," Mr. Verrilli told the court, further cautioning against a court decision that might "repudiate the constitutional legitimacy of thousands of appointments of presidents going back to George Washington."

A soft-drink bottling company based in Yakima, Wash., Noel Canning clashed with the NLRB in February 2012, when the board upheld an administrative judge's ruling against the company in a contract dispute with Teamsters Local 760. Two of the three labor board members ruling against Noel Canning, Democrat Sharon Block and Republican Terence Flynn, rose to their positions in January 2012 as a result of recess appointments Mr. Obama made to thwart opposition from Senate Republicans.

Taking a page from the Democratic playbook during the George W. Bush presidency, Republicans have kept the Senate in "pro forma" sessions that last only a minute or so, but are meant to prevent recess appointments. The Constitution authorizes presidents to make such appointments "during the Recess of the Senate, which shall expire at the end of their next session." The Constitution further states that the appointments can be made to "fill up all vacancies that may happen during the Recess."

In the abortion case, Arizona's appeal sought to topple a pillar of the 1973 Roe v. Wade decision: its guarantee of access to abortion for women until the fetus is viable. Arizona argued that viability -- generally understood to occur at 24 weeks of pregnancy -- isn't an absolute line, and that lawmakers should be able to step in earlier to protect a pregnant woman and the developing baby.

A fetus "is a unique human being from the moment of his or her conception, not merely from the moment of 'viability' outside the womb," the state argued.

The Supreme Court hasn't given full review to an abortion case since 2007 when a 5-4 decision upheld a federal ban on a form of late-term abortion called "partial birth" by opponents.


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