I have pulled a few quotes that I think sum up the dilemma the Court faces.
First, the Recess Appointments clause was designed for a different time and to address a different problem. Justice Kagan ponders aloud:
You know, absence in this day and age - this is not the horse and buggy era anymore. There's no real -- there's no such thing truly as congressional absence anymore. And that makes me wonder whether we're dealing here with what's essentially an historic relic,something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.As Justice Ginsburg bluntly put it, nowadays "the Senate is always
available." Which leads to the question of what to do about it if in fact the Recess Appointments clause is an "historic relic" that has morphed into something different from what the Constitution actually says.
Justice Scalia frames it as:
What do you do when there is a practice that -- that flatly contradicts a clear text of the Constitution? Which -- which of the two prevails? . . . . So if you ignore the Constitution . . . often enough, its meaning changes?Or, as Justice Kagan puts it:
The idea that we would wake up one fine morning and chuck all of that because all of a sudden we happened to read the clause, I mean, that at least needs to be defended.The Court seemed to focus on this notion that President Obama's recess appointments (and many, many recess appointments by numerous presidents before him) bear little resemblance to the actual Recess Appointments clause as originally ratified. Do we just accept the new balance that has played out over the years? Or stick to the text and original meaning of the Constitution (I think this is a no-brainer for at least a few of the Justices).
Even if we allowed intrasession recess appointments - the appointments in this case occurred while the Senate purported to be in session, albeit holding only "pro forma" sessions in which no work was actually done. Does the Senate decide when it's in session?
We'll have to wait a few months to get answers to these questions. I think the smart money is on some type of limitation on the president's recess appointments power. I think it remains a mystery as to just how far the Supreme Court will go.