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First 20-Week Abortion Case Punted; Recess Appointments Doomed?

By William Peacock, Esq. on January 13, 2014 | Last updated on March 21, 2019

Now we're talking.

After weeks of vacation and little to no Supreme Court news, after issuing a few orders on Friday, the Court dropped a thirty-page orders list this morning, which included another three Justice Alito recusals (all of which, much like the others, involved big-name corporations and likely stock interests). More importantly, the Court denied certiorari in the first 20-week abortion ban case to reach the docket.

And, of course, oral arguments were heard in the landmark Noel Canning case this morning, which asks whether the President can exercise his recess appointment powers while the Senate is in pro forma (they keep the lights on, but no business is handled) sessions. Hint: it's not looking good for President Obama.

20-Week Cases Await?

It shouldn't be much of a surprise to see the Court punt on the Arizona 20-week abortion ban case. After all, this is the first such case to reach the docket. The Court often waits for multiple lower court cases to mature, and for circuit splits to develop, before stepping in.

Either that, or the Ninth Circuit's opinion was so convincing, and the law so clear, that they felt no need to take the case.

Both scenarios seem unlikely. The Ninth Circuit continuously vies for the most-reversed title, and the Supreme Court's recent jurisprudence has shown more approval of restrictions on abortions, such as the partial-birth abortion ban.

This is especially true when the law is a regulation that merely has the "incidental effect of making it more difficult or more expensive to procure an abortion."

The Arizona law's stated purpose was to "[p]rohibit a woman from electing abortion once the fetus reaches twenty weeks gestational age," which seemed to be, language-wise, a ban, rather than a regulation with incidental effects. A similar statute, with softer language, might pass muster.

Our take is: don't consider this denial as tacit approval of the Ninth Circuit's reasoning or as a tacit condemnation of 20-week laws. With the dozens of 20-week bans hitting the legislatures of states across the country, the Court is likely waiting for the issue to ripen a bit before granting certiorari.

Noel Canning Oral Arguments: Exec's Power About to Shrink

Oral arguments have questionable utility. Justice Scalia, a proponent of oral arguments, has even stated that they have never changed his mind, and at best, have helped him make up his mind. Justice Thomas takes naps.

But if today's oral arguments in Noel Canning are any indication of the judges' thoughts, President Obama is in for a major defeat.

The D.C. Circuit held that the President's appointments, during a Senate pro forma session, were unconstitutional because the recess appointment power only applied during actual recesses, because the vacancy has to arise during the recess, and because "pro forma" sessions are sessions, and they essentially block the president from making recess appointments.

Politico's recap of the arguments include indications from both the right and left side of the court that the President's appointments are doomed.

Justice Kagan stated, "It really is the Senate's job to determine whether they were in a recess," while Justice Kennedy noted that the administration's arguments would allow appointments in "a one-hour break, a one-day break, a three-day break ... or a one-month break."

As for the argument that a vacancy must arise during a recess to trigger the appointment power, Justice Scalia quipped, "If you ignore the Constitution often enough, its meaning changes?"

Solicitor General Donald Verrilli disputed the interpretation of the language, while also arguing that the court should look to historical records and that "the practice should govern," reports Politico.

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