The U.S. Supreme Court this week curbed the president’s power to make temporary appointments without Senate approval, dealing a blow to the powers of the presidency. The justices ruled unanimously that President Obama violated the Constitution when he appointed in January 2012 three members of the National Labor Relations Board (NLRB) and the first director of the Consumer Financial Protection Bureau while the Senate was gaveling in and out every 72 hours, holding only pro-forma sessions every three days.
President Obama maintained that the Senate was, for all intents and purposes, in recess. Under the Constitution, presidents can fill vacancies during recess for up to two years without Senate confirmation.
The case was the court’s first look at the constitutional provision that lets the president make temporary appointments to high-level posts during Senate recesses. “Because the Senate was in session during its pro forma sessions, the president made the recess appointments before us during a break too short to count as recess,” Justice Breyer said. “For that reason, the appointments are invalid.” He was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayer, and Elena Kagan.
Breyer said any recess of fewer than 10 days would be “presumptively” too short to permit recess appointments. The Senate’s breaks tend to be shorter than 10 days. Whenever the White House and Senate are controlled by opposite parties, the high court’s ruling will prevent presidents from sidestepping the Constitution’s confirmation process during similar three-day recesses. The 2012 sessions occurred because House Republicans used their power under a different part of the Constitution to prevent the Senate from adjourning.
However, the majority opinion by Justice Breyer did not go further and strike down most other methods by which presidents fill key jobs when the Senate is unavailable. While the ruling as it affects Obama’s appointments was unanimous, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito would have applied the restrictions far more broadly. They said the recess-appointment power applies only after a yearlong congressional session ends and before the next one begins, not during breaks within a session.
Justice Scalia wrote for the remaining justices that a president’s recess appointments power should be limited far more than the court allowed, because the Senate always can be called back into session to confirm nominees. Writing for the group, Scalia also said valid appointments could be made only when the vacancy itself occurred while the Senate was adjourned.
Late last year, Senate Majority Leader Harry Reid (D-NV) changed the chamber’s rules to allow approval of all nominees, except those to the Supreme Court, by a simple majority rather than 60 votes. The move effectively stripped the minority party of the power to block almost all of Obama’s nominees.
“The president made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even bothering to wait for advice and consent,” said Senate Republican Leader Mitch McConnell. “A unanimous Supreme Court has rejected this brazen power-grab.”
The high court’s ruling means that hundreds of decisions made by the NLRB while dominated by Obama’s recess appointments in 2012 and half of 2013 will be called into question. The new five-member board, including four members since approved by the Senate, may have to revisit those cases. Richard Cordray, director of the Consumer Financial Protection Bureau, has since been confirmed by the Senate, so he can reaffirm his prior actions.
