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. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

ADVERTISEMENT