The Senate Bangs the Gavel On Obama

When are you on vacation, and when are you not?

For most of us, that question is easily answered: When we hang up the “On Vacation” sign, when we post that polite automatic email notice saying we will be out of the office until such-and-such a date, or when our jet to vacationland revs up for takeoff.

But if you’re a member of the U.S. Senate, the definition of “on vacation” is not so easily arrived at. It took the nine hard-working legal minds of the Supreme Court to render a decision last week as to what qualifies as “in recess” or “in session” for purposes of nullifying presidential appointments made during senatorial breaks.

The Supreme Court said President Obama had violated the Constitution when he bypassed the Senate to appoint officials to the National Labor Relations Board during a brief break in the Senate’s work. But the broader implication of the court’s ruling — in an opinion written by Justice Stephen G. Breyer and joined by its four more liberal members — was that recess appointment are valid, so long as they are made during a recess of 10 or more days.

The ruling was of historic importance, resolving longstanding ambiguities and recurrent wrangling over the president’s appointive power.

The specific issue presented before the justices involved a certain legislative pretense: In January 2012, during a month-long break, the Republican-controlled House of Representatives forced the Senate to hold a pro forma session every third day — in which a single senator came into the empty chamber and banged the gavel.

The Court held that such gavel-banging is a meaningful senatorial activity, qualifying as a session, during which the president could not make appointments without senatorial “advice and consent.”

Lest anyone charge that this is typical Republican trickery, let’s be clear that the trickery is completely bipartisan.In fact, it was the Democrats who invented it, to use against President George W. Bush.

Even though no legislative business was transacted, and not a single speech read into the Congressional Record, it still counted. In other words, the Supreme Court finds that the Senate “is in session when it says it is.”

But this is no absolute license to create fiction. The Court qualified the Senate’s pro forma session-making power to periods when it retains the capacity to transact Senate business. Even though it chooses not to do so, as was the case here, it could have, and that’s the bottom line.

While it left the Senate a significant loophole, overall, the majority upheld the constitutionality of presidential recess appointments. This clears the way for future presidents to take advantage of senatorial getaways to get their men into office.

In what was described as “a caustic concurrence,” Justice Antonin Scalia noted that “the majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal.”

Originally, the recess appointment power was designed, not as a means for the executive to circumvent the legislative branch, but as a way for the president to urgently fill vacancies when the Senate was away. Scalia scorned the recess appointments as an anachronism in an age of high-tech communications. Furthermore, that it violates the principle of Senate confirmation, undermining the checks and balances architecture of the Constitution.

Scalia sought to narrow the loophole, writing in a minority opinion that recess appointments are only constitutional when vacancies arise during a true recess, not a 10-day break.

“The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments,” Scalia wrote.

But a long series of precedents won out. Presidents have frequently interpreted the word “recess” to apply to short, intra-session recesses, and have acted on that interpretation. The Senate as a body has done nothing to deny the validity of this practice for at least three-quarters of a century.

“We are pleased that the court recognized the president’s executive authority as exercised by presidents going all the way back to George Washington,” said White House press secretary Josh Earnest.

That’s the long view. But the immediate repercussions of the Court ruling are less pleasing to the incumbent. Earnest said Obama was “deeply disappointed.” For losing the case means that hundreds of decisions made by the NLRB are thrown into legal limbo and may have to be taken up again — a setback for executive power, at least in the short term.

Soon, they’ll all go on summer vacation — the Supreme Court, the Senate, Obama, and all their aides and appointees. Not just for 10 days, either. The Senate and House will take the entire month of August off, per tradition. The Justices take off their black robes in late June or early July, and don’t put them on again until, by statute, the first Monday in October.

In the meantime, we’ll have a rest too, or at least a mental vacation, from the constitutional pondering over definitions of vacation, recess, intra-session recess, session, pro forma session. It’s a job to keep it all straight.

This article appeared in print on page 10 of the July 3rd, 2014 edition of Hamodia.