Supreme Court limits presidents’ recess appointment powers

McClatchy Washington BureauJune 26, 2014 

The White House in Washington, D.C.

TISH WELLS — McClatchy

— The Supreme Court on Thursday modestly curtailed a president’s power to unilaterally appoint officials during a Senate recess.

In a limited defeat for President Barack Obama and his White House successors, the court unanimously ruled that Obama improperly appointed several members to the National Labor Relations Board during a brief Senate recess.

The Senate’s three-day recess, a scheme to thwart presidential appointments, was “too short a time” to trigger the presidential recess appointment powers, the court agreed. The Constitution allows recess appointments without Senate approval, making them a popular tool for presidents facing a recalcitrant Congress.

“A recess lasting less than 10 days is presumptively too short,” Justice Stephen Breyer wrote.

The decision Thursday has been among the court’s most highly anticipated because of its potential to tilt the delicate balance of power between Congress and the White House. In essence, the Senate wins, because it gets to decide when it’s in recess. The White House, though, also wins because the court didn’t go as far as it might have.

“The president dodged a bullet today,” noted John Cooney, former assistant to the U.S. solicitor general.

White House Press Secretary Josh Earnest said the president “was deeply disappointed” in the Supreme Court 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,” Earnest said.

He said the ruling does preserve some important elements of the president’s executive authority that he will not hesitate to use.

“The president, though, remains committed to using every element of his executive authority to make progress on behalf of middle-class families,” Earnest said. “The president is in no way considering scaling back” his executive actions.

The case decided Thursday deals with a constitutional provision that authorizes presidents to make such appointments “during the Recess of the Senate, which shall expire at the end of their next session.”

In the NLRB case, a family-owned Washington state company called Noel Canning ran afoul of the labor board in February 2012, when it upheld an administrative judge’s ruling against the company in a contract dispute with Teamsters Local 760.

Two of the three labor board members ruling against Noel Canning, Democrat Sharon Block and Republican Terence Flynn, had been appointed by Obama in January 2012. They had not, however, been confirmed by the Senate.

Practically speaking, the ruling will undermine NLRB decisions made by the challenged appointees.

The U.S. Chamber of Commerce estimated the ruling could invalidate hundreds of NLRB decisions, while the National Right to Work Foundation went further, calculating that “over 1,500” board decisions made between April 2011 and August 2013 may be invalid.

The Noel Canning win also could undercut actions taken at the new Consumer Financial Protection Bureau by Richard Cordray, who was initially given a recess appointment to head the agency many Republicans oppose. Politically, the decision reinforces the congressional Republicans who contend Obama has run amok with his executive powers.

Republican Sen. Charles Grassley of Iowa called it “the Supreme Court’s biggest rebuke to any president since 1974, when it ordered President Nixon to produce the Watergate tapes.”

House Republicans who are going sue Obama over his executive actions were similarly emboldened.

“Today’s decision should put wind in the sail of the lawsuit Speaker John Boehner is proposing,” noted Todd Gaziano, executive director of the Sacramento-based Pacific Legal Foundation’s Washington center.

But beyond the labor board decisions and the political ammo, the decision Thursday will be limited in its reach, for several reasons.

While all nine justices agreed the specific NLRB appointments were improper, the court by a narrower 5-4 margin upheld the president’s ability to make recess appointments during both an intra-session as well as an inter-session recess. This rejected more sweeping arguments pushed by conservatives.

Every Congress is divided into two, one-year sessions. The inter-session recess usually occurs around late December and January, between the conclusion of one session and the start of another.

“The Senate is equally away during both an inter-session and an intra-session recess, and its capacity to participate in the appointments process has nothing to do with the words it uses to signal its departure,” Breyer reasoned.

The court’s four most consistently conservative justices argued for stricter limits.

“The court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” Justice Antonin Scalia wrote.

Underscoring his ire, Scalia read a portion of his concurring opinion from the bench.

Further confining the reach of its decision, the court affirmed that recess appointments can fill even those vacancies that first occur outside of a Senate recess. That had been an outstanding question in the rarely litigated recess appointment field, which forced the justices to summon early 19th century letters and documents.

Obama’s reliance on recess appointments, moreover, already has been eased by Senate Democrats’ earlier move to limit Republicans’ ability to filibuster nominees.

Senate Democrats used pro forma sessions to block President George W. Bush’s Republican nominees, and Senate Republicans have followed suit. A presiding senator gavels the Senate into a very brief session, typically with no other senators present. The theory is that by doing this every few days, the Senate avoids starting a recess

Facing Senate Republicans’ resistance, Obama gave recess appointments to the two NLRB nominees.

The court challenges undercut a common presidential tool. President Bill Clinton made 139 recess appointments and President George W. Bush made 171, according to the Congressional Research Service. Through June 2013, Obama made 32 recess appointments.

Email:; Twitter: @MichaelDoyle10.

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