ILNews

Ruling limits president's recess appointments

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

ADVERTISEMENT