The U.S. Supreme Court will hear a case involving the president's recess appointment power, Professor Lisa McElroy told Southern California Public Radio's Airtalk on June 24.
The U.S. Supreme Court will hear a challenge to President Obama's power to make federal appointments when Congress is out of session, McElroy said. "This is a very very big case," McElroy claimed, which involves a situation where the Senate was out of session during a holiday break and President Obama used his appointment power to fill some slots at a federal agency. Republicans challenging the appointments say the president improperly invoked the power because the vacancies did not occur during the recess, McElroy added.
The court will have some difficult questions to decide, McElroy said. Specifically, when exactly the Senate is "in recess," whether a vacancy has to occur during a recess and whether the Senate can frustrate the recess power by returning from recess for a short period of time, not doing any business, and then resuming recess.
Like most Supreme Court decisions, the court could choose to limit its holding to just to the parties in the case or, alternatively, issue a broader decision which could affect all recess appointments, McElroy claimed.
McElroy also discussed the court's decision in Fisher v. University of Texas, the case involving the University of Texas' affirmative action admissions program.
Instead of reversing existing affirmative action law, the Supreme Court, in a 7-1 decision, decided to send the case back down to the lower court to apply a stricter standard of review, McElroy said. This kind of decision, McElroy claimed, signifies the court's effort to maintain institutional continuity by adhering to existing affirmative action precedent on the issue rather than reversing it simply because the ideological composition of the court may have changed since its last affirmative action decision.