WASHINGTON, D.C. — As the nation mourns the passing of Justice Antonin Scalia, talk on Capitol Hill is raging about the possibility that President Barack Obama will fill the seat of the deceased conservative lion and how Sen. Mitch McConnell can block Obama by moving quickly to recall the Senate.
The Recess Appointments Clause in Article II of the Constitution provides, “The President shall have Power to fill up Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session.”
The meaning of this constitutional provision was decided by the Supreme Court in its famous 2014 case NLRB v. Noel Canning, argued by former Scalia law clerk Noel Francisco. The Court held by a unanimous 9-0 vote that Obama’s recess appointments were unconstitutional.
But they did not agree on why. In true originalist fashion, Justice Scalia wrote for four justices that the president only has this power during Congress’s year-end recess (which many decades ago could be months long, but in modern times may only be several days long, or not exist at all). The conservative legal icon also wrote that this power only applies to vacancies that occur during this annual recess.
But a five-justice majority read the Recess Appointments Clause more broadly than its history, holding that the president wields this power anytime the Senate is out of session for at least ten days.
Here, the Senate has adjourned for slightly more than ten days. The Senate adopted Senate Concurrent Resolution 31 at 10:18AM on February 12, saying the Senate was out of session until 3:00PM on February 22. That’s ten days, 4 hours, and 42 minutes. Contrary to the opinions expressed by several media reports, this ten-day window clearly triggers Obama’s power to make recess appointments under Noel Canning.
Presidents can make recess appointments to the Supreme Court. In fact, President Dwight Eisenhower made three. If Obama were to make such a recess appointment, it would last until late December 2017 — 21 months from now. During that time, there would be a solid five-justice majority on the U.S. Supreme Court. It would likely be the most liberal Supreme Court in all of American history.
As Sen. Ted Cruz — one of the top conservative Supreme Court lawyers of the past century — has explained over the past couple days, the outcomes of such a Court would likely include abolishing gun ownership as an individual right through overruling the Court’s 5-4 Heller decision which Justice Scalia wrote in 2008, expanding abortion rights to include partial-birth abortion with taxpayer funding, and eradicating crosses and Star of David displays from war memorials and public graveyards, including possibly dismantling Arlington National Cemetery.
The White House has signaled that Obama will not make a recess appointment. However, once it becomes clear that Republican senators are willing to hold the line and not allow a confirmation vote on Obama’s nominee for a full eleven months, sources on Capitol Hill tell Breitbart News that they do not put it past Obama to make such an extraordinarily controversial move.
Sen. Mitch McConnell can eliminate the risk, however, by calling the Senate back into session. Section 2(a) of the adjournment resolution expressly authorizes the Senate majority leader to recall the Senate if, in his judgment, “the public interest shall warrant it.”
McConnell could do so immediately. If he issues the call to return to Washington, and Obama preempts him by rushing an appointment without first consulting with Senate leadership and the Senate Judiciary Committee, it would be an unprecedented insult to the institution of the Senate.
Should that happen, the Senate could retaliate by immediately bringing the nomination to the Senate floor for a vote. A recess appointment can be terminated by senators voting down the nomination.
This is the first time the Senate will face an election-year Supreme Court nomination in 80 years. It is not clear how great the risk is that Obama would risk all-out war by making a recess appointment. But according to Breitbart News’s sources in the Senate, if McConnell wants to zero out that risk, the only way to do so is to call the Senate back into session now.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.