Obama could be in for a Supreme headache

A check on President Obama's abuse of power could be on the way, courtesy of the highest court in the land, George Will tells us:

Constitutional arguments that seem as dry as dust can have momentous consequences. On Monday, the Supreme Court’s nine fine minds will hear oral arguments about the meaning of "the" and "happen." What they decide could advance the urgent project of reining in rampant executive power.

"The president," says the Constitution, "shall have the power to fill up all vacancies that may happen during the recess of the Senate" (emphasis added). Monday's case concerns whether Barack Obama made recess appointments when the Senate was not in recess, and made them to fill vacancies that did not happen during a recess.

In 2012, the National Labor Relations Board (NLRB) rendered a decision adverse to a soft-drink bottler in Yakima, Wash. The bottler asked the court to declare the NLRB’s intervention unlawful because the board did not have a legitimate quorum, three members having been installed by Obama when the Senate was not in recess as the Framers understood this term.

Republicans, wanting to block some Obama nominations, used a practice Democrats used in 2007 when they controlled the Senate and wanted to block some George W. Bush appointments. Operating under a unanimous-consent agreement — no Democrat objected — pro forma sessions occurred Jan. 3 and Jan. 6 of 2012. Obama declared the Senate in recess Jan. 4 and made his NLRB appointments, thereby disregarding the Senate’s determination of the rules of its proceedings and the settled practice both parties have used to remain not in recess even when most senators are away.

The Obama administration argues that the word "happen" is a synonym for "exist.: And it rejects the argument that an intra-session Senate break is a synonym for "adjournment," not “recess.” This, however, ignores the reasonable reading of the definite article: Recess appointments fill vacancies that "happen,: meaning come about, during "the" recess of the Senate — the one break that occurs between sessions, which, until the Civil War, usually lasted only three to six months.