Republican senators left the Supreme Court arguments today confident that they would prevail in the constitutional showdown over the president's power to make recess appointments.
Sen. Mike Lee (R-Utah), on the front steps of the court, said he believed the justices would deliver a lopsided win on at least one of the three key questions at issue in NLRB v. Noel Canning. That would let stand appeals court rulings that President Barack Obama overstepped his authority when he sidestepped the Senate's advise-and-consent power in January 2012.
Lee pointed to a particular exchange in the Supreme Court oral arguments today—about what language the Senate used when creating its so-called "pro forma" sessions to avoid going into a recess—as the Obama administration's weak point.
"That exchange deepened my impression that most—perhaps all—of the justices understand, appreciate and respect the fact that the Senate does have the power under Article I to establish its own rules of procedure, to decide things like when it's in session and when it isn't," Lee said.
"When you get down to this question of what exactly this 'pro forma' has to consist of in order for it to matter relative to the recess appointments clause, in order for it to not trigger the recess appointment power, then you tend to demonstrate the slippery slope that the Obama administration’s argument gets into," Lee said.
Sen. Jeff Sessions (R-Ala.) pointed to another key question explored during the arguments—the definition of the phrase to "fill up all vacancies that may happen during the recess of the Senate."
On that issue, Solicitor General Donald Verrilli Jr. argued for the Obama administration that the phrase "may happen" simply means a vacancy that arises at any time. Jones Day's Noel Francisco, representing Noel Canning, argued the phrase means what it says—that the vacancy must first arise during a recess.
"I thought it was pretty clear that many of the justices, a number of the justices, believed 'a vacancy which happens' means what it says," Sessions said on the Supreme Court’s front steps.
Senate Republican Leader Mitch McConnell and the other 44 Republican senators filed as an amicus party in the case and were granted 15 minutes of the 90-minute argument today. Miguel Estrada of Gibson, Dunn & Crutcher argued for the Senate Republicans.
McConnell, in a written statement, said he saw the justices siding with Republicans on a key issue.
"The Court today was rightly skeptical of the Solicitor General's inconsistent argument that the Senate is in session if the President wants it to pass legislation he supports, but the Senate is not in session if he wants to circumvent the advice and consent requirement of the Constitution," McConnell said.
Lee, the son of Rex Lee, a solicitor general during the Reagan administration, said he "was like a kid in the candy store" hearing arguments about what the constitution's writers meant.
"I really enjoyed that all three of the arguing counsel today had an enormously powerful command of the history of the exercise of recess appointment power," Lee said. "It was interesting to hear how it had been viewed by the first few presidents, how it’s been exercised over 225 years or so since the constitution’s been in effect."