Congress is planning to adjourn early, and that means that President Obama could have a Supreme Court pick before he leaves the White House. More than likely, if this happens, Obama may choose Merrick Garland for Supreme Court.
This is a relatively complex situation, but here’s what it could mean. Congress may adjourn early to halt last-minute, Hail Mary, Obama regulations. Congress has 60 days to disapprove any presidential regulations, according to a law from 1996.
If Obama plans to make any ridiculous last-minute regulations, Congress can end early, which means they will have more time to overrule said regulations. Ideally, the leaders are planning to leave around December 9, 2016.
According to the Constitution in Article II, Section 2, “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”
This is similar to a “recess” in Court, which could mean a ten-day gap between sessions. During this recess, President Obama could appoint Merrick Garland to the Supreme Court. If the Senate leaves on December 9, they would be gone longer than ten days.
Is This a Possibility?
The next question here would be to wonder whether or not Congress has the power to say that they are in fact, in recess. In NLRB vs. Noel Canning, the Supreme Court admitted that Congress has the power to make this decision, but certain restrictions will apply. Essentially, Congress needs to hold pro forma sessions to be in recess.
In regard to appointments that end in January, the same section of the Constitution uses the word “next,” which means it’s not referring to this session, but the next session. That could mean that it lasts for two years. If that were the case, Garland would be in Court for two years before changes could be made.
In addition, the word “vacancy” does not necessarily have to happen during the recess. The Constitution also states, “Presidents have used the Recess Appointments Clause to fill not only vacancies that occur during recesses, but also those that initially arose when the Senate was in session.”
All in all, while Obama may not be bold enough to consider such an action, although the possibility exists. If Congress confirms a recess in early December, Obama has this option, which could mean two more years of a leftist Supreme Court.