The Supreme Court on Thursday limited the president’s power to fill high-level administration posts with temporary appointments, ruling in favor of Senate Republicans in their partisan clash with President Barack Obama.
But the justices stopped short of a more sweeping decision that would have effectively ended a president’s power to make appointments when the Senate takes a break.
It was the high court’s first case involving the Constitution’s recess appointments clause. The justices ruled unanimously that Obama’s appointments to the National Labor Relations Board in 2012 without Senate confirmation were illegal.
Obama had argued that the Senate was on an extended holiday break and that the brief sessions it held every three days — what lawmakers call “pro forma” — were a sham intended to prevent him from filling seats on the NLRB.
Rejecting that argument, Justice Stephen Breyer said in his majority opinion that the Senate is not in recess if lawmakers actually say they are in session and retain the power to conduct business. He said a congressional break has to last at least 10 days to be considered a recess under the Constitution.
The impact of the decision may be less important now because Senate Democrats have changed the rules to make it harder for the chamber’s minority party — currently the GOP — to block presidential nominations.
White House spokesman Josh Earnest said the administration disagreed with the court’s ruling. But he said that while the White House was reviewing the decision, “we’ll honor it.”
The outcome could have been worse for the Obama administration. The lower court had gone further, ruling that the only recess recognized by the Constitution is the once-a-year break between sessions of Congress. It also said that only vacancies that arise during that recess could be filled.
Justice Antonin Scalia, writing for himself, Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, said he would have upheld the reasoning of the U.S. Court of Appeals for the D.C. Circuit.
“The only remaining practical use for the recess-appointment power is the ignoble one of enabling presidents to circumvent the Senate’s role in the appointment process, which is precisely what happened here,” said Scalia, who took the unusual step of reading his concurrence from the bench.
The ruling’s impact may be felt by the White House next year if Republicans capture control of the Senate in the November election. The potential importance of the ruling lies in the Senate’s ability to block the confirmation of judges and the leaders of independent agencies such as the NLRB.
Republican leaders in both houses of Congress, House Speaker John Boehner of Ohio and Sen. Mitch McConnell of Kentucky, praised the court for rejecting what they described as Obama’s unconstitutional power grab. Senate Majority Leader Harry Reid of Nevada said the decision underscores the importance of the Senate rule change to make sure that a small number of senators cannot block qualified nominees.
Several hundred decisions the NLRB made with the recess-appointed members will now have to be re-decided by the current board. However, the result in most cases is likely to be the same, given similar pro-labor leanings of the current majority.
Obama has made relatively few recess appointments — 32 in his five-plus years in office, according to the Congressional Research Service. President George W. Bush made 171 such appointments over two terms and President Bill Clinton filled 139 posts that way in his eight years in office.
But Obama was the first president to try to make recess appointments when Congress explicitly said it was not in recess. The Constitution requires that the Senate and House must get the other’s consent for any break lasting longer than three days. At the end of 2011, the Republican-controlled House would not give the Democratic-led Senate permission for a longer break.
The partisan roles were reversed during Bush’s presidency, when Senate Democrats sought ways to prevent the president from making recess appointments.
In fact, the very basis on which the justices decided the case — that the Senate can use extremely brief sessions to avoid a formal recess — was a tactic devised by Reid to frustrate Bush.
On a practical level, there may be little difference between how the court decided the case and the way Scalia wishes it had been decided, said Andy Pincus, a veteran Supreme Court lawyer in Washington.
“The recess appointment power has receded into practical irrelevance,” Pincus said, pointing to the now-common Senate practice of blocking recess appointments by convening for pro forma sessions. “Today’s decision likely cements that reality.”
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