| ABC News | - |
The
Supreme Court 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.
Ruling Limits President's Recess Appointments
The Supreme Court 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.
———
Associated Press writers Mark Sherman and Jessica Gresko and AP White
House correspondent Julie Pace and contributed to this report.
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