Updated: February 15, 2014 6:17AM
President Barack Obama once taught constitutional law at the University of Chicago, but he may be about to get a lesson from the U.S. Supreme Court that suggests his knowledge of the Constitution doesn’t quite measure up.
Even liberal members of the high court, including one who once worked in the Obama administration, were skeptical of the president’s broad assertion that he can pretty much make recess appointments to high office whenever he wants to.
This constitutional confrontation over the separation of powers between the White House and the Senate was argued for 90 minutes before the high court Monday.
At issue is a provision of the Constitution that stipulates “the president shall have the power to fill up all vacancies that may happen during the recess of the Senate.”
That 18th century language was written in an era when the horse was the fastest means of land travel and when the Congress could be in recess for as long nine months. Modern transportation and the growth of government mean Congress is rarely out of session more than a few weeks.
Over the years as presidents and Senates clashed over politics and policies, presidents came to use recess appointments as a way to get around senators who wouldn’t confirm presidential appointments to vacancies than didn’t occur during recesses.
Democrats and Republicans often fought over this issue. For example, Democrats set the precedent of keeping the Senate in pro forma sessions where no work is actually done to keep President George W. Bush from making recess appointments.
Republicans adopted the tactic, but in 2012 Obama simply ignored the Senate’s directive and unilaterally declared the Senate to be in recess and made several appointments, including pro-union activists to the National Labor Relations Board.
A business-union dispute from Washington state ended up in court and an appeals court judge ruled that not only had Obama over-stepped his authority but that the language of the Constitution means that recess appointments are valid only when a vacancy occurred while the Congress was in actual recess. The historical evolution of the recess appointment authority was endangered.
It’s always difficult to forecast how the Supreme Court will rule, but Monday’s questioning revealed a high degree of skepticism that Obama can overrule the Senate’s leaders and declare the body in recess.
“It really is the Senate’s job to determine whether they were in a recess,” said Justice Elena Kagan. She worked for Obama as solicitor general and was appointed by him to the high court. Another liberal justice, Stephen Breyer, also had a hard time swallowing Obama’s position.
This controversy is just the latest one arising from Obama’s fast and loose reading of the Constitution. He unilaterally rewrote parts of the Obamacare law and launched an air war in Libya without so much as a nod to Congress. Obama got a break two years ago when Chief Justice John Roberts did legal contortions to rescue the Affordable Care Act from its obvious constitutional problems.
If his luck runs out this time, the constitutional lecturer will get a lecture in constitutional law — one he richly deserves.