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Recess Appointments: A Case for Summary Affirmance?

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The U.S. Supreme Court occasionally issues summary reversals of lower court decisions.  That is, it sometimes reverses just on the certiorari petition, without new briefing on the merits or oral argument.  These reversals are particularly common in Ninth and Sixth Circuit habeas cases, where those courts repeatedly do exactly what Congress told them not to do.

Much more rare is a summary affirmance, but a case about to be filed may call for it.

Charlie Savage has this story in the NYT:
The Obama administration has decided that it will appeal to the Supreme Court a sweeping ruling by an appeals court in January that President Obama violated the Constitution when he bypassed the Senate in making three recess appointments to the National Labor Relations Board last year.

While the dispute grew out of a narrow and novel legal question -- whether brief "pro forma" sessions by the Senate could prevent the president from making recess appointments during a lengthy winter break by lawmakers -- the appeals court blew past that issue and called into question nearly two centuries of recess appointments by presidents of both parties.

The three-judge panel of the appeals court in Washington ruled that presidents may bypass the confirmation process only during the sort of recess that occurs between formal sessions of Congress, rather than other breaks throughout the year. The gaps between formal sessions generally arise just once a year and sometimes -- as in 2012, when the Senate had not formally adjourned before the next session began -- are skipped entirely.

Conor McEvily at SCOTUSblog has links to other coverage of the announcement.

The judgment is clearly correct as to the "pro forma" sessions.  The Constitution unambiguously gives each house of Congress the power to make its own rules, not subject to second-guessing by other branches of government.  It is not up to the President to decide when the Senate is "really" in session.

As for the rest, the Supreme Court said many years ago:

In the exercise of [its] jurisdiction, [the Supreme Court] is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully.
Unfortunately, this principle is "more honored in the breach than the observance."  "Rigidly adhered" was an overstatement even in 1885, and there have been many breaches since.

Given a clearly correct judgment and an unnecessarily expansive lower court opinion, a wise course might be to grant certiorari and summarily affirm on the clearly correct ground, declining to rule on questions not presented, quoting the passage above.

Although the actual case involves the NLRB, it would affect recess appointments related to criminal law as well, so this post is not entirely off-topic.

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