WASHINGTON -- A major Supreme Court battle over presidential powers loomed closer Thursday as the Obama administration asked the justices to uphold appointments made without the Senate's consent.
The long-expected Justice Department request is almost certain to make its way on to the court's calendar later this year or in 2014, since lower courts have issued split decisions on the issue.
At stake is whether Obama can circumvent Republican filibusters of his nominees by appointing them while senators are out of town -- even though, in this case, the Senate reconvened every few days in "pro forma" sessions where no business was conducted.
The case could impact all presidents and Congresses, regardless of political party, depending on the scope of the high court's eventual ruling.
Obama appointed three new members in January 2012 to the five-member National Labor Relations Board, which had been stymied following Senate Republicans' refusal to consider two of his nominees. The administration argued he had that authority because the Senate was not in session.
But the federal appeals court for the District of Columbia ruled this past January that Obama lacked the authority to make the appointments in the middle of the 112th Congress, and to fill vacancies that had long existed. It reasoned that Obama's action was a way around the Senate's advise-and-consent role.
"The Court of Appeals' decision would dramatically curtail the scope of the president's authority under the recess appointments clause," the Justice Department argued Thursday.
"It would deem invalid hundreds of recess appointments made by presidents since early in the nation's history. It potentially calls into question every order issued by the National Labor Relations Board since Jan. 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies."
The Congressional Research Service found that hundreds of appointments dating back to Ronald Reagan's presidency would have been deemed unconstitutional under the appeals court's ruling.
One of the most recent was Obama's appointment of Richard Cordray to head the Consumer Financial Protection Board created by the financial overhaul bill in 2010 -- an appointment Senate Republicans blocked throughout 2011.