obama
REUTERS/Larry Downing
The Supreme Court ruled on Thursday that President Obama's recess appointments to fill slots on the National Labor Relations Board in 2012 were unconstitutional. But the high court also gave the president "substantial recess appointment power" during appropriate windows, SCOTUSblog's Tom Goldstein said.
The unanimous opinion, written by liberal Justice Stephen Breyer, said that Congress, and only Congress, decides when it is in session and when it is in recess. It ruled the Senate was not in a formal recess when Obama made the 2012 appointments — therefore, they were illegal. (Here's a link to the opinion.)
"Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess," the opinion read. "Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments."
The case, National Labor Relations Board v. Canning, was a challenge to limit the president's ability to make appointments of federal officials while the Senate is in recess. It specifically challenged three of Obama's recess appointments to the National Labor Relations Board (NLRB), an independent government agency that conducts elections for labor-union representation and investigates allegations of unfair labor practices.
SCOTUSblog's Goldstein explains the practicality of what it means. Basically, when either chamber of Congress is controlled by the opposing party, the president's recess power is curtailed:
Here is the upshot of the decision. The President can make a recess appointment without Senate confirmation when the Senate says it is in recess. But either the House or the Senate can take the Senate out of recess and force it to hold a "pro forma session" that will block any recess appointment. So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked.
The New Yorker's Jeffrey Toobin wrote last year that the case had the potential to bring Washington even more paralysis and dysfunction. That was before, however, the Senate changed its rules to allow most presidential nominees to be confirmed by majority vote.
Obama had said when appointing the three NLRB members that Senate Republicans sought to stop the board from functioning. The administration argued the pro forma sessions held by the Senate every three days were only a sham designed to keep him from filling the posts.
The ruling is a victory for Senate Minority Leader Mitch McConnell, who filed an amicus briefing with other Senate Republicans in the case. McConnell said Thursday the Supreme Court acted decisively to curb Obama's power.
"I welcome the Supreme Court’s important decision today that the President’s so-called 'recess' appointments to the National Labor Relations Board two and one-half years ago were unconstitutional," McConnell said. "This administration has a tendency to abide by laws that it likes and to disregard those it doesn’t. In this case, that disturbing and dangerous tendency extended to the Constitution itself."
Senate Majority Leader Harry Reid fumed at the decision, saying it emphasized the importance of the Senate rules changes last year that allow nominees to be confirmed by a simple majority vote.
"More than anything, today’s Supreme Court ruling underscores the importance of the rules reform Senate Democrats enacted last November," Reid said. "Without that reform and with today’s ruling, a small but vocal minority would have more power than ever to block qualified nominees from getting a simple up-or-down vote on the floor."