Government Will Lose Recess Appointments Case | Cato @ Liberty

Government Will Lose Recess Appointments Case | Cato @ Liberty: This morning’s oral argument couldn’t have gone any better for those challenging President Obama’s recess appointments (see previous commentary and Cato’s brief for background on NLRB v. Noel Canning). Not only were Justices Scalia and Alito sticklers for constitutional text and structure, but the more liberal justices joined in to express extreme skepticism about the government’s theories. Justice Kagan pointed out that modern presidents don’t face congressional absences—the reason for the president’s power to appoint federal officials without the Senate’s “advice and consent”—but merely congressional “intransigence.” And the Recess Appointments Clause doesn’t exist to solve those kinds of political problems, noted Justice Breyer. Justice Breyer also pointed out that, if you follow the government’s argument that so-called “pro forma” Senate sessions don’t count, then the Senate repeatedly violates the Constitution by not having a “actual” sessions on January 3 (as the 20th Amendment requires) and by recessing for more than three days without the House’s consent (as Article I, Section 5 requires).