SCOTUS reviews recess appointments in arguments today

The Supreme Court might have a light workload this year, but not today.  It will hear oral arguments in two key cases [see update below], both of which might have long-lasting impact on politics, and one which has significant reach on First Amendment speech rights in the public square.  The headliner today will be the arguments over the recess appointments made by Barack Obama to the NLRB while the Senate considered itself in session — a case which lower courts used to drastically shrink recess-appointment power:

Nothing less than the boundaries of executive power are at stake Monday as the Supreme Court considers whether President Obama violated the Constitution during his first term.

Oral arguments slated for Monday will center on a trio of recess appointments to the National Labor Relations Board (NLRB) that were deemed unconstitutional by lower courts.

If they uphold the decision, experts say the justices could endanger hundreds of NLRB decisions.

Even more significant are the ramifications for future presidents, with the court poised either to bolster or blunt the chief executive’s appointment powers.

“Rulings like this have implications that last for centuries,” said Michael Lotito, an employment and labor attorney and co-chairman of Littler Mendelson’s Workplace Policy Institute.


That’s why the legislative and executive branches usually find ways to compromise without letting the judiciary weigh in on these fights.  The decisions will force one or the other into a worse position than before, and it’s usually a toss-up as to how it will finish. In this case, though, expect the Supreme Court to be deeply skeptical about the executive branch’s authority to determine what constitutes a legitimate session of the Senate.  They are going to note that the branches are co-equal, which means the White House can’t set rules for Capitol Hill (and vice versa, outside of statutory law signed by the President).

One appeals court went farther than that, ruling almost exactly a year ago that the Constitutional recess appointment power only applies in formal recesses, not breaks within sessions of Congress.  That would strip the Presidency of nearly all power to make recess appointments, which would be a huge blow … if the Senate hadn’t weakened the filibuster recently in regard to executive-branch appointments. Now a mere majority is all a President needs to get appointments confirmed, which means that Obama probably won’t need to make much use of the recess power anyway. At least, not unless Republicans take control of the Senate after the midterm elections.

The other case for oral arguments today this week that won’t get as much attention will be the issue of “buffer zones” around abortion clinics to keep protesters away.  This restricts pro-life activists in some states (Massachusetts in this case) from blocking access for activists to public property in the name of safety:

These protective zones arose after a spate of intense confrontations and violence in and around abortion facilities in the 1990s. The Supreme Court upheld federal and state laws restricting some speech around women’s health centers for the sake of safety and order. But opponents say the Massachusetts law has gone too far because it doesn’t treat speech for or against abortion in the same way. Proponents of the state law, including the Obama administration, say treatment is equal and that it’s necessary to make sure clinic patients and staff are safe.

The case, McCullen v. Coakley, is brought by Eleanor McCullen, a 76-year-old woman who stands outside the Boston Planned Parenthood clinic on Tuesdays and Wednesdays to try to dissuade women from obtaining abortions. She says she’s personally spent more than $50,000 on her effort, including buying baby supplies and paying electric bills or rent for women she meets outside the clinic. She and others who filed the suit say “hundreds of women” accepted their offers of help over the years, before the buffer zone law went into effect.

McCullen and others say the buffer zone — a line painted on the sidewalk at the 35-foot mark — has severely limited their constitutional right to conduct what they call “sidewalk counseling.”

The Massachusetts law set up the 35-foot zone around abortion clinics. The only people who can enter are those going to and from the clinic, passersby and employees of the clinic and their “agents” conducting official business.

That last exemption, McCullen’s lawyers say, allows Planned Parenthood employees and escorts to operate within the buffer zone but denies access to the protesters. That unequal prohibition on speech, they say, is unconstitutional.

This probably won’t overturn the 2007 decision that allowed these buffer zones, but it may make them so complicated to implement that states will do away with them. It will be interesting to see the result here, to see whether pro-life speech is somehow less protected than pro-abortion speech.

Update: I misread the Politico article; the Massachusetts case will be heard on Wednesday. Thanks to Gabriel Malor for the correction.