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Ruling limits president's recess appointments

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The Supreme Court of the United States 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 recess appointments when the Senate takes a break.

It was the high court's first case involving the Constitution's recess appointments clause, ending with a unanimous decision 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 since Senate Democrats changed the rules to make it harder for the chamber's minority party — currently the GOP — to block Obama's 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 was the least significant loss possible for the 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 keenly 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 like the NLRB.

Republican leaders in both houses of Congress, House Speaker John Boehner and Sen. Mitch McConnell, praised the court for rejecting what they described as Obama's unconstitutional power grab. Senate Majority Leader Harry Reid 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."

A recess appointment can last no more than two years. Recess appointees who subsequently won Senate confirmation include Chief Justice Earl Warren and Justice William Brennan, Federal Reserve Chairman Alan Greenspan, two current NLRB members and Consumer Financial Protection Bureau director Richard Cordray.

The case challenging the appointments was brought by Noel Canning, a soft drink bottling company in Yakima, Washington. The company claimed an NLRB decision against it was not valid because the board members were not properly appointed and that the board therefore did not have enough members to do business.

Noel Canning prevailed in the U.S. Circuit Court of Appeals for the District of Columbia, and two other appeals courts also had ruled against recess appointments.

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  1. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

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