Danger! Obama could put Merrick Garland on Supreme Court in December

Last week, I warned that if Congress adjourned for the year too soon, it could open a window to give President Obama a Supreme Court pick.  That's because of a provision of the Constitution that allows the president to make recess appointments that can last two or more years.  Now we get word that Congress is planning to adjourn early, which will give Obama an opportunity to appoint Merrick Garland to the Supreme Court.

This discussion is fairly complex, involving both constitutional and statutory law, so bear with me.

1) Why does Congress want to adjourn early?  Members of Congress want to adjourn early this year so they can kill last-minute Obama regulations.  According to a 1996 law, Congress has 60 legislative days in which to disapprove of presidential regulations.  If Obama makes some horrendous last-minute regulations, by ending its session early, Congress has more time to overrule those regulations.  That's why congressional leaders are tentatively planning to adjourn by December 9.

2) What does this have to do with the Supreme Court vacancy?  Under Article II, Section 2 of the Constitution:

The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

Courts have interpreted "recess" to mean a ten or longer-day gap between sessions of the Senate.  That means Obama, during the recess, could appoint Merrick Garland to the Supreme Court, since by adjourning for the year on December 9, the Senate will be gone for far longer than ten days.

3) But doesn't Congress have the power to say whether it is in recess or not?  Kind of.  In NLRB v. Noel Canning, the Supreme Court said Congress has the power to decide whether it is in recess or not, but only up to a certain point.  If Congress does not at least hold pro forma sessions, it cannot say it is in recess (see pages 4-5 of the actual opinion).

4) But wouldn't an appointment last only until the beginning of January?  Note the words of Article II, Section 2 above.  Note the word next, as in "not this session, but the next one."  The one that's going to last for two years.  That's how long Garland would be on the court.

5) But Article II, Section 2 talks about vacancies occurring during a recess.  This isn't the situation here.  Not true.  The actual "vacancy" does not have to begin during the recess. Only the appointment need occur during the recess.  That's how the Article II, Section 2 has been interpreted:

Presidents have used the Recess Appointments Clause to fill not only vacancies that occur during recesses, but also those that initially arose when the Senate was in session.

6) But couldn't Congress declare itself in recess for purposes of recess appointments but still hold pro forma sessions?  No.

7) You don't know what you're talking about! Ryan and McConnell would never be dumb enough to make such a move!  Don't be so sure.  Even if they are aware of Article II, Section 2, they may think Obama would never be bold enough to make such an appointment.  Why else would they be making plans to give Obama such a window unless they never suspected he would use it?

I'm an attorney.  I went to Harvard Law School.  I studied constitutional law.  I've spent years listening to people like Mark Levin, who are experts on constitutional law.  Trust me when I tell you that this is a potential problem.

If Congress does recess on December 9 without coming back, Obama can appoint Garland to the Supreme Court.  We could be in for two years of a solid leftist Supreme Court unless someone on Capitol Hill shows some common sense.

Ed Straker is the senior writer at NewsMachete.com and an attorney by training.

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