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Court showdown over recess appointments

A federal appeals court on Wednesday takes up the issue of a president's power to make appointments when the Senate is out of town, one that has divided Congress and the White House for decades.

Last January, President Barack Obama infuriated Senate Republicans by naming Richard Cordray to be director of the newly formed Consumer Financial Protection Bureau and putting three new members on the National Labor Relations Board (NLRB).

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"It's clear the president would rather trample our system of separation of powers than work with Republicans to move the country forward," House Speaker John Boehner said at the time. "I expect the courts will find the appointment to be illegitimate."

Now the issue is squarely before the courts.  A three-judge panel of the U.S. Court of Appeals in Washington, D.C., is taking up a challenge to the appointments, hearing a lawsuit brought by a Pacific Northwest soft drink bottler who lost a union dispute before the NLRB.

The company claims that the president had no power to appoint the new NLRB members and that the subsequent action by the board therefore lacked legitimacy. Similar challenges are pending in federal courts around the nation, brought with the backing of the U.S. Chamber of Commerce and other business groups.

At the core of the dispute is a provision of Article II of the Constitution, setting out the president's duties and authorities. They include "the power to fill up all vacancies that may happen during the recess of the Senate."

During the nation's first century, Congress was in session less than half a year. Recess appointment power allowed the president to keep the government functioning by filling important jobs when the Senate was not around to confirm nominations.

In modern times, presidents of both parties have used the power to make appointments during much shorter congressional recesses in the summer and around holidays. 

But during the George H.W. Bush administration, Democrats came up with the idea of pro forma sessions, in which the body was gaveled to order then immediately adjourned for another few days. They claimed that the Senate remained in session and that recess appointments could not be made. Senate Republicans have since continued the pro forma practice. 

"Such short intra-session breaks are not recesses," the bottling company argues in court papers.  "Otherwise, every weekend, night or lunch break would be a 'recess' too."

What's more, the company argues, the Senate, not the president, is the proper judge of whether it is in recess, and it agreed by unanimous consent to remain in session from mid-December to mid-January.  During that period, on Dec. 23, the Senate passed an extension to the payroll tax cut, the company notes.

Senate Republicans have filed their own friend-of-court brief. They argue that by declaring the Senate incapable of performing its functions during the pro-forma sessions, "the president usurped the Senate's control of its own procedures. And by appointing officers without the Senate's consent, he took away its right to review and reject his nominations."

But the Obama Justice Department argues that the pro forma procedures, each lasting less than a minute, are a sham and do not mean the Senate was actually in session. "It could not provide advice or consent on presidential nominations during that 20-day period," government lawyers argue.

In agreeing to its holiday break, Justice Department lawyers note, the Senate "provided by order that 'no business' would be conducted."

The government lawyers say there's nothing mysterious about the meaning of the word recess -- "a break by the Senate from its usual business, such as periods in which the Framers anticipated that senators would return to their respective states."

"The pro forma sessions were not designed to permit the Senate to do business, but rather to ensure that no business was done," the Justice Department says.

President Obama invoked the recess appointment power 32 times during his first term to fill vacancies in full-time government positions, though he has not made any such appointments since last January's controversy. President Clinton made 95 recess appointments during his administration; President George W. Bush used the power 99 times. 

If, as seems likely, the issue gets to the Supreme Court, the justices could settle a passionate debate over a presidential power used hundreds of times, stirring controversy since the beginning.