A Supreme Amount Of Trouble

It looks like President Obama's power to make recess appointments is about to have some very strict limits placed on it by SCOTUS if Monday's oral arguments are anything to go by.  Lyle Denniston:

Seeming a bit troubled about allowing the Senate to have an on-off switch on the president’s power to temporarily fill vacant government posts, the Supreme Court on Monday indicated that it may yet allow just that. Even some of the Justices whose votes the government almost certainly needs to salvage an important presidential power were more than skeptical. 

A ninety-three-minute hearing on the Constitution’s grant of power to the president to make short-term appointments to fill vacancies was at times a somewhat anxious exploration of whether history or constitutional text should govern the extent of that power. On balance, text seemed to be winning out, and that appeared to favor the Senate more than the White House. 

Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem, not a constitutional problem. Senators of both parties have used the Constitution’s recess appointment provisions to their own advantage in their “political fights,” Breyer said, but noted that he could not find anything in the history of the clause that would “allow the president to overcome Senate resistance” to nominees.

If Justice Breyer is openly saying that he can't find any reason for the President's power of recess appointments to not be limited to strictly the time between Congresses rather than whenever Congress isn't actively in session, then any recess appointments the President may wish to make will be limited to a few days every two years, the next window being in January 2015 and that's it.

Should the GOP get control of the Senate, nobody will get confirmed or appointed, and Republicans will be free to keep executive branch positions unfilled for two years.

And there won't be a thing the President will be able to do.

That should scare the hell out of you.

This particular battle looks to be over before it even began.