Policy: Law

Mike Lee predicts defeat for Obama at Supreme Court in recess appointments case

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Oral arguments before the Supreme Court on Monday went badly for President Obama, according to Sen. Mike Lee, R-Utah, who predicts that the justices will rule against the president in a lawsuit pertaining to controversial recess appointments.

“After listening to oral argument today, I am very confident the Supreme Court will affirm the DC Circuit Court’s judgement in NLRB v Noel Canning and determine that the president’s recess appointments on Jan. 4, 2012, were unconstitutional,” Lee told the Washington Examiner in an emailed statement. A constitutional attorney by training, Lee clerked for Supreme Court Justice Samuel Alito.

Obama invoked his recess appointment power to install three officials to the National Labor Relations Board, an important agency for setting union policy in the absence of congressional action. One problem: Congress was not in recess, according to Senate rules. Asked for a prediction on the vote tally, Lee predicted that the court could rule 7-2 in favor of the Senate's power to decide when it is in session -- or it could hand down a unanimous 9-0 decision.

Justice Stephen breyer, a Democratic appointee who typically votes with the liberal bloc of the court, poured cold water on Solicitor General Donald Verrilli's argument that the recess appointment power should function as a "safety valve" when pressure builds between Obama and Congressional Republicans.

"I can't find anything so far that says the purpose of this clause has anything to do with political fights between Congress and the president,” Breyer said during the oral argument, according to the Washington Times.

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