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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. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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