The decision gives the Senate broad power to thwart future recess appointments. SCOTUS strikes appointments

In a rebuke to President Barack Obama, the Supreme Court struck down three of his recess appointments to the National Labor Relations Board as unconstitutional.

The decision Thursday gives the Senate broad power to thwart future recess appointments, but did not go as far as some conservatives hoped to undercut the president’s ability to fill vacant executive branch posts and judicial slots.


The court ruled 9-0 that Obama’s appointments were unconstitutional because the Senate was not truly in recess when he made them during a three-day break in pro forma meetings of the legislative body.

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The court’s four most conservative justices would have gone further, ruling that the president exceeded his authority because the vacancies did not arise during that break and because the president’s recess appointment power only occurs during breaks between usually year-long sessions of the Senate. However, five justices would not accept those arguments.

Writing for that majority, Justice Stephen Breyer found that a recess of less than 10 days is “presumptively too short” to permit a recess appointment. But he declined to agree to the other limits on a president’s appointment powers, saying going that far would be too disruptive to the traditional balance of power and at odds with what he called “centuries of history” of recess appointments made during Senate sessions and to posts that have been vacant for some time prior to the break.

“We are reluctant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long,” Breyer wrote in an opinion joined by the court’s liberals and Republican appointee Justice Anthony Kennedy, a frequent swing vote.

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Justice Antonin Scalia issued a withering opinion for the court’s conservative wing, accusing the majority of ignoring the plain text of the Constitution in order to accommodate a practice clearly at odds with it.

“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,” Scalia warned. He called the majority’s work “atextual” and an endorsement of “an adverse-possession theory of executive authority” —scoffing at the idea that if one branch of government fails to assert its prerogatives for a time, it loses those powers.

“A self-aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding,” Scalia wrote.

Scalia also accused the court’s majority of crafting the 10 day rule and other parts of its opinion out of thin air.

“If the Constitution’s text empowers the President to make appointments during any break in the Senate’s proceedings, by what right does the majority subject the President’s exercise of that power to vague, court-crafted limitations with no textual basis?” he asked.

“An interpretation that calls for this kind of judicial adventurism cannot be correct,” he added.

Breyer’s majority opinion contains a series of rather blunt, even caustic rebuttals to the fiery Scalia, who added emphasis to his opinions by delivering much of it from the bench.

“Justice Scalia would render illegitimate thousands of recess appointments reaching all the way back to the founding era. More than that: Calling the Clause an ‘anachronism,’ he would basically read it out of the Constitution,” Breyer wrote. “He performs this act of judicial excision in the name of liberty. We fail to see how excising the Recess Appointments Clause preserves freedom.”

The case before the court was brought by a Pepsi bottler in Washington state, Noel Canning, and addressed the constitutionality of Obama’s decision to bypass the Senate by making politically sensitive recess appointments of three individuals to the NLRB and another to head the new Consumer Financial Protection Bureau.

The appointments came during a period when the Senate claimed to be in session, even though it was on a 20-day break in most of its substantive business. The chamber was gaveled in briefly every three days, apparently in an attempt to stymie recess appointments, and a Senate resolution said no business was to be conducted.

However, as Breyer noted in the court’s ruling Thursday, the Senate has sometimes taken formal actions and even passed legislation during such pro forma sessions.

The Supreme Court’s decision Thursday does not upset any current appointments. Obama has not exercised his recess appointment power since he named the three individuals to the labor panel and Richard Cordray to head the newly-created Consumer Financial Protection Bureau in 2012.

But the ruling’s impact now and in the near future could be less sweeping than when the current legal fight was set in motion two years ago. That’s because last November, Senate Democrats exercised the so-called nuclear option — doing away with the Republican minority’s power to use the filibuster to block action on most nominees with fewer than 60 votes.

That move broke a logjam on judicial and executive nominations, allowing Obama to win confirmation of a slew of a nominees who had the support of nearly all Democrats but lacked Republican backing.

The Supreme Court’s decision to rein in the recess appointment power could become more significant if Democrats lose control of the Senate in this fall’s elections. That would restore Republicans’ ability to block confirmation of Obama nominees — something Obama could have countered with a more vigorous use of recess appointments, as it was widely interpreted before the new court decision.

Senate Minority Leader Mitch McConnell of Kentucky and 44 other Senate Republicans filed a friend-of-the-court brief urging the justices to declare Obama’s appointments unconstitutional. Senate Democrats took no official position in the case, though Democratic Senate leaders have often approved actions to thwart recess appointments, such as arranging the pro forma sessions which Obama maintained were inadequate to demonstrate that the legislative body was open for business.

“Today, the Supreme Court emphatically rejected President Obama’s brazen efforts to circumvent the Constitution, bypass the people’s elected representatives, and govern above the law,” Sen. Orrin Hatch (R-Utah) said in a statement Thursday. “The Court has reaffirmed the Senate’s vital advice-and-consent role as a check on executive abuses.”

Scalia’s opinion Thursday also contains several colorful digressions aimed at pointing up what he sees as logical flaws in the majority’s reasoning. After challenging Breyer’s interpretation of the Senate’s historical view on what constitutes a legislative break sufficient to trigger the president’s recess appointment power, Scalia schooled his colleague for succumbing to the dreaded “fallacy of the inverse.”

”If someone avers that a catfish is a cat, and I respond by pointing out that a catfish lives in water and does not have four legs, I have not endorsed the proposition that every land-dwelling quadruped is a cat,” the conservative justice declared.

John Bresnahan contributed to this report.

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