Progressives’ last-ditch effort to install Merrick Garland on the Supreme Court before Donald Trump enters the White House could end on Tuesday if President Obama does not attempt a recess appointment.
Just before noon, the 114th Congress will gavel out of session before the 115th Congress begins. Some progressives want Obama to use the short “intersession recess” to put Garland on the high court.
But a 2014 Supreme Court decision in National Labor Relations Board v. Noel Canning may undercut such action by Obama. The unanimous 9-0 opinion penned by Justice Stephen Breyer said, “If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. … And a recess lasting less than 10 days is presumptively too short as well.”
Case Western University law professor Jonathan Adler has argued the 2014 ruling would make a recess appointment of Garland unconstitutional.
“If a three-day recess is too short, a three-second recess would certainly be as well and … Justice Breyer’s opinion makes no distinction between intrasession and intersession recesses,” Adler wrote for the Washington Post. “All told, every justice on the court embraced an opinion rejecting the idea that such an intersession recess appointment would be constitutional.”
Obama has not signaled whether he intends to take such action on Tuesday, but Garland is scheduled to begin hearing arguments again for the D.C. Circuit Court of Appeals on Jan. 18. Garland stopped hearing arguments after his nomination last spring, but has continued to do administrative work. With President-elect Trump’s inauguration fast approaching, Garland’s moment in the spotlight is all but over.
