Supreme Court Rules Against Recess Appointments

The Supreme Court ruled Thursday that President Barack Obama exceeded his power under the Constitution by filling three federal positions when the Senate was on a brief break, but justices upheld the right of the president to make recess appointments during longer breaks.

While the president is authorized to fill vacancies while the Senate is on recess, the justices decided in a 9-0 ruling that the Senate was not on a true recess in January 2012 when Obama filled three seats on the National Labor Relations Board.

The decision is a rebuke to the president, but its short-term
impact on Obama could be muted because last year the Democratic-controlled Senate scrapped a long-standing filibuster rule that had allowed the current Republican minority to block a vote on many of his nominees.

Before that change was made, Republicans effectively blocked many of Obama’s appointments.

The limited scope of the court’s ruling was criticized by Justice Antonin Scalia, who agreed with the majority but said the court should have gone much further.

Justice Anthony Kennedy and the court’s most liberal members also signed onto the opinion, written by Justice Stephen Breyer.

“A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President’s recess appointment power,” Breyer wrote.

But the court was split 5-4 on the broader question of whether the modern presidency should retain the right to make recess appointments.

Scalia, in an opinion that read more like a dissent than a concurrence, blasted the Breyer opinion from the bench, a highly unusual move.

“The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” Scalia wrote.

“To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best.”

He was joined by fellow conservatives Chief Justice John G. Roberts, Jr., and Justices Clarence Thomas and Samuel A. Alito Jr.

But Breyer wrote for the court that a broader reading of the recess clause “is reinforced by centuries of history, which we are hesitant to disturb. We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess — intra-session or inter-session — of sufficient length.”

He indicated that a sufficient length might be a break of 11 days.

The Senate subsequently confirmed appointments to the three  posts, so the decision will not displace any officials. If Republicans take control of the Senate this fall, the court’s ruling could carry more weight next year.

The ruling will bind future presidents as well, limiting the president’s authority to go around the Senate. In America’s early years, presidents used recess appointments because members of Congress left the capital for several months at a time. In their absence, the president could make temporary appointments to the government. Recently, presidents from Reagan to Obama have used the power to bypass a Senate slow to confirm his nominees.

This article appeared in print on page 1 of the June 27th, 2014 edition of Hamodia.