High court rejects Obama power move on recess appointments

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President Obama violated the Constitution when he moved two years ago to fill a series of vacancies on the National Labor Relations Board, the U.S. Supreme Court said Thursday in a ruling setting clear limits to executive power. [READ SUPREME COURT'S RULING.]

The decision, however, leaves presidents significant discretion to make recess appointments, without Senate confirmation – just not when the chamber says it is in session.

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“For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business,” Justice Stephen Breyer wrote for the court. “The Senate met that standard here.”

The ruling settles, for now, a long running dispute between branches of government, rekindled with the president’s bold use of recess appointments to circumvent Senate Republicans bent on blocking his nominees.

For decades, presidents have used recess appointment powers, when the Senate is away to install judges and fill top federal vacancies that ordinarily would be subject to confirmation proceedings.

But with the disputed NLRB appointments, Obama became the first to appoint nominees, when the Senate was in a “pro-forma” session, when the upper chamber is briefly called to order and adjourned every few days.

In the current political landscape, the ruling might have little effect on Obama’s ability to install federal judges and fill top federal vacancies, especially since Democrats pushed through Senate rule changes allowing most presidential nominations to advance with a simple majority.

However, if the Republicans take control of the Senate this November –at any future moment when the President’s party does not control the chamber – the court’s ruling would allow Congress to block presidential appointments.

Still, the court warned that power is also subject to limitations.

“…Our deference to the Senate cannot be absolute,” Breyer wote. “When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares.”

Senate Minority Leader Mitch McConnell, who intervened in the case on behalf of 44 members of the Senate, celebrated the ruling.

“The president made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even bothering to wait for its advice and consent,” the Kentucky Republican said.  “A unanimous Supreme Court has rejected this brazen power-grab.” 

The case was brought by Noel Canning, an Oregon-based soft drink bottling and distribution company that challenged the appointments as unconstitutional.

The Obama administration claimed that the Senate is generally not available to conduct business during the sessions, so the president’s recess appointment power was in effect when the appointments were made.

On Thursday, the White House lamented its defeat.

"We're of course deeply disappointed in today’s decision… we are, however, pleased that the court recognized the president’s executive authority as exercised by presidents going all the way back to George Washington," White House Press Secretary Josh Eanest said. 

Beyond a symbolic victory for the legislative branch, the ruling also has major practical ramifications for Obama and future presidents.

While all nine justices agreed that Obama’s NLRB appointments were unconstitutional, the court was deeply divided about when the executive should be empowered to fill vacancies.

Breyer, along with the court’s other liberals and frequent swing vote Justice Anthony Kennedy, cobbled together a narrow majority affirming the president’s broad authority to make recess appointments either during recesses within or between Senate sessions.

The majority set forth a 10-day threshold, arguing anything shorter than that would generally be insufficient to justify exertion of the Recess Appointment Clause.

Justice Antonin Scalia, joined by the court’s other three conservatives, voiced vehement disagreement with that route. Though concurring with the overall judgment, the group said the majority opinion leaves the executive branch with too much leeway.

“It is inconceivable that the framers would have left the cir­cumstances in which the president could exercise such a significant and potentially dangerous power so utterly indeterminate,” Scalia wrote.

 

The majority bristled at that contention, saying it is the conservatives who would do damage if let to have their way.

Scalia’s position would, they said, would “render illegitimate thousands of recess appointments reaching all the way back to the founding era,” and basically end presidential recess appointment powers.

“He performs this act of judicial excision in the name of liberty,” Breyer wrote. “We fail to see how excising the Recess Appointments Clause preserves freedom.”

The NLRB said it is reviewing the opinion.

 

This story was updated at 12:34 p.m. and 2:10 p.m.