NYTimes: Supreme Court Rebukes Obama on Right of Appointment


WASHINGTON — The Supreme Court issued a unanimous rebuke to President Obama on Thursday, saying he had overreached in issuing recess appointments during brief breaks in the Senate’s work. 

Mr. Obama violated the Constitution in 2012, the justices said, by appointing officials to the National Labor Relations Board during a break in the Senate’s work when the chamber was convening every three days in short pro forma sessions in which no business was conducted. Those breaks were too short, Justice Stephen G. Breyer wrote in a majority opinion joined by the court’s four other more liberal members.

At the same time, the court largely reinstated an uneasy, centuries-long accommodation between the executive branch and the Senate, in which recess appointments were allowed during more substantial breaks. Justice Breyer said such appointments generally remained permissible so long as they were made during breaks of 10 or more days.

Although there may be few immediate practical consequences of the ruling, given the recent overhaul of the Senate’s filibuster rules, the decision was nonetheless momentous, involving a constitutional adjudication of the balance of power between the president and the Senate.

Just how to strike that balance was the subject of a heated dispute between the court’s more liberal members and its more conservative ones.

The practical impact of the ruling over time “remains to be seen,” Justice Antonin Scalia said in a concurrence. Many experts say that if either house of Congress is controlled by the party opposed to the president, lawmakers can effectively block recess appointments by requiring pro forma sessions every three days. The Constitution says that each house must get the approval of the other chamber to adjourn for more than three days.

But Justice Scalia was skeptical, noting that the president had the constitutional power to set adjournments when the chambers disagreed. 

What was certain, he said, was that the court had endorsed a vast expansion of executive power. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. joined the concurrence, which was caustic and despairing. 

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

If it was hard to assess the immediate consequences, there was no question that Mr. Obama narrowly avoided a far broader loss, one that could have limited recess appointments to breaks between Congress’s formal annual sessions, and even then to vacancies that arose during those breaks. That was the approach embraced by the court’s four most conservative members. 

“The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” Justice Scalia said from the bench. 

The decision affirmed a broad ruling last year by a federal appeals court in Washington that had called into question the constitutionality of many recess appointments by presidents of both parties. But the Supreme Court majority rejected the appeals court’s reading of the constitutional text, relying instead on historical practices and pragmatic considerations.

Josh Earnest, the White House press secretary, expressed dismay and satisfaction in equal measure. “We’re of course deeply disappointed in today’s decision,” he said. But Mr. Earnest added that the White House was “pleased that the court recognized the president’s executive authority as exercised by presidents going all the way back to George Washington.”

Miguel Estrada, a lawyer for Senator Mitch McConnell of Kentucky, the Republican leader, said the decision was a victory for the Senate and the separation of powers. “The Supreme Court reaffirmed the Senate’s power to prescribe its own rules, including the right to determine for itself when it is in session, and rejected the president’s completely unprecedented assertion of unilateral appointment power,” he said.

The issue of recess appointments and what they are meant to accomplish — installing a controversial nominee by circumventing the confirmation process — is largely a moot one on Capitol Hill. Because Senate Democrats late last year changed the rules governing how nominees are approved and made it far easier for the president to get his officials confirmed, there is not much need for a recess appointment for now.

The Constitution’s recess-appointments clause says, “The president shall have power to fill up all vacancies that may happen during the recess of the Senate.”

Analyzing that language, a three-judge panel of the appeals court said that presidents may bypass the Senate only during the recesses between formal sessions of Congress. Two of the judges went further, saying that presidents may fill only vacancies that came up during that same recess.

The case arose from a labor dispute involving a soft-drink bottling company, Noel Canning. The labor board ruled against the company, saying it had engaged in an unfair labor practice by refusing to enter into a collective bargaining agreement.

The company appealed, arguing that the labor board had been powerless to rule because a majority of its members had been appointed during a 20-day stretch when the Senate was convening every three days in pro forma sessions without conducting business. Mr. Obama, who viewed the sessions as a tactic to keep the Senate open so he could not make recess appointments, made the appointments anyway.

Since three members of the board — Sharon Block, Terence F. Flynn and Richard F. Griffin Jr. — had not been properly appointed, the company argued, its ruling was void.

In asking the Supreme Court to review the appeals court’s ruling in the case, National Labor Relations Board v. Noel Canning, No. 12-1281, the Obama administration sought answers to only the broader questions decided by the appeals court. But the Supreme Court agreed to answer a narrower question, too: whether the president may make recess appointments when the Senate is convening every three days in pro forma sessions.

That was the question on which the administration lost.

The board issued 436 decisions during the 18 months when Mr. Obama’s improperly appointed employees worked there. Gregory J. King, a spokesman for the labor board, said there remained about 100 cases on hold in federal appeals courts awaiting a Supreme Court decision about the legitimacy of the recess appointees. In those cases, the appellants are challenging decisions from when the board had the contested appointees; they assert that the board did not have a legitimate quorum to issue those decisions.

The great majority of those board decisions may be negated by Thursday’s ruling by the Supreme Court. At the request of the litigants, many of those cases will be returned to — and reviewed by — the current board, which has a full contingent of five members duly confirmed by the Senate. Because the board has a 3-2 Democratic majority, the current board is likely to affirm nearly all or all of the rulings, legal experts said.

Both sides in Thursday’s decision relied heavily on history. Justice Breyer noted many examples of recess appointments made during formal sessions of the Senate, some of which filled vacancies that had arisen before the break in question. “Justice Scalia would render illegitimate thousands of recess appointments reaching all the way back to the founding era,” Justice Breyer wrote.

But he added that the earlier breaks were not as brief as the ones at issue. “We have not found a single example of a recess appointment made during an intra-session recess that was shorter than 10 days,” Justice Breyer wrote in explaining why the court had adopted that criterion. 

The 10-day rule was not absolute, he added, as a national emergency might require faster action. But he said that “political opposition in the Senate would not qualify as an unusual circumstance.”

Justice Scalia said all of this was arbitrary. “These new rules have no basis whatsoever in the Constitution,” he said from the bench. “They are just made up.”

“What the majority needs to sustain its judgment is an ambiguous text and a clear historical practice,” he wrote. “What it has is clear text and an at-best-ambiguous historical practice.”

Jeremy W. Peters contributed reporting from Washington, and Steven Greenhouse from New York

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