Supreme Court opinion on recess appointments

BY ROBERT BARNES June 26 at 11:18 AM
The Supreme Court ruled unanimously Thursday that President Obama lacked constitutional authority to make high-level government appointments at a time he declared the Senate in recess and unable to act on the nominations.

Obama made appointments to the National Labor Relations Board in January 2012 at a time when the Senate was holding pro forma sessions every three days precisely to thwart the president’s ability to exercise the power.

“When the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business,” that is sufficient from keeping the president to make recess appointments, Justice Stephen G. Breyer wrote for the court.

The court was interpreting the Constitution’s Recess Clause, which says the president “shall have power to fill up all vacancies that may happen during the recess of the Senate.”

The case was a rarity in that the Supreme Court has never had reason to play referee on the issue before and has no precedent to rely on. While the current battle is between Obama and Senate Republicans, the tension has existed equally when a Republican has occupied the White House and Democrats objected to his appointments.

Read the decision

While the court was unanimous that Obama’s actions were unlawful, it was badly split on other questions the case raised, and narrowly favored an expansive view of the chief executive’s power.

Breyer and the court’s liberals, joined by Justice Anthony M. Kennedy, read the Constitution to give wide authority to the president to make recess appointments when the Senate was in recess — 10 days is the minimum, they decided. And they said that the vacancies did not have to arise during the time the Senate was away.

“That broader reading is reinforced by centuries of history, which we are hesitant to disturb,” Breyer wrote. The conservative dissenters, he said, “would render illegitimate thousands of recess appointments reaching all the way back to the founding era.”

Breyer and Kennedy were joined in that part of the opinion by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Justice Antonin Scalia disagreed strongly, signaling his displeasure by reading from the bench a statement accusing his colleagues of “judicial adventurism.”

“This issue has been the subject of a long-simmering interbranch conflict that we ought to resolve according to our best lights, rather than by deferring to an overreaching Executive Branch,” Scalia said.

He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr.

As both sides noted, the justices had never been called upon to decide exactly what constitutes a recess, and every president since George Washington has used the power to make appointments to the highest levels of the military and executive and judicial branches.

There was more riding on the outcome before Senate Democrats late last year changed the filibuster rules to make it easier for the president’s nominees to be confirmed on a majority vote. But the conflict would be in play whenever one party controlled the executive branch and the other ruled the Senate.

It was the question of pro forma sessions that had prompted the case.

Senate Democrats started the pro forma sessions in 2007 to prevent President George W. Bush from making recess appointments. Despite encouragement from his advisers to challenge the legitimacy of the sessions, he declined.

But when Obama became president and the membership of the NLRB fell to two members because Senate Republicans blocked votes on the president’s three nominees, Obama took action. Despite the pro forma sessions, Obama took note of the Senate’s declaration that no business would be conducted and made his nominees recess appointees.

A bottling company in Washington state that lost an NLRB ruling challenged the legitimacy of the members, and a panel of the U.S. Court of Appeals for the D.C. Circuit went beyond the question of pro forma sessions to severely restrict the president’s power.

Judge David Sentelle said that the Constitution’s reference to “the Recess” means that appointments are allowed only during the recess between sessions of the Senate, not when the Senate is simply on a break. It was not up to the president to decide what constitutes a recess, Sentelle said.

Additionally, the panel said the president has authority to make appointments only to vacancies that arise during a recess, which would drastically limit a president’s ability to make use of the recess appointment power.

The case is NLRB v. Noel Canning.

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