via USA Today
by Richard Wolf
The Supreme Court dealt a blow to the powers of the presidency Thursday, ruling decisively that President Obama violated the Constitution by going around the Senate to name key labor and financial watchdogs.
Resolving a longstanding battle between the two other branches of government, the justices declared invalid key “recess appointments” made by Obama in 2012 when the Senate was holding only pro-forma sessions every three days.
But the majority opinion by Justice Stephen 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, four conservative justices would have applied the restriction far more broadly.
Instead, the court stopped short of limiting such appointments to remote periods and circumstances, as a federal appeals court had ruled last year.
“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,” Breyer said. “For that reason, the appointments are invalid.” He was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Cast in the hyper-political environment of 2014, the battle pit Obama’s brazen appointments against Senate Republicans’ unprecedented efforts to block or delay his nominations. It lost its immediate relevance last fall when Democrats changed the Senate’s rules to deprive the Republican minority of its ability to block nominations.
“More than anything, today’s Supreme Court ruling underscores the importance of the rules reform Senate Democrats enacted last November,” said Majority Leader Harry Reid.
If Republicans take control of the Senate in November, however — and 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.
Senate Republican leader Mitch McConnell hailed the ruling. “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 its advice and consent,” he said. “A unanimous Supreme Court has rejected this brazen power-grab.”
Justice Antonin Scalia wrote for the remaining four 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.
“The majority practically bends over backward to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” he said. “That is unfortunate, because the recess appointment power is an anachronism.”
After enduring three years of Republican opposition, Obama opened 2012 by naming three members to the quorum-starved National Labor Relations Board and the first director of the Consumer Financial Protection Bureau while the Senate was gaveling in and out every 72 hours, usually without conducting any business.
Obama said the Senate, for all intents and purposes, was in recess. Under the Constitution, presidents can fill vacancies during recesses for up to two years without Senate confirmation.
Enter Pepsi bottler Noel Canning of Yakima, Wash., which contested a 2012 decision of the labor board dominated by Obama’s recess appointees. It won more than it bargained for at the U.S. Court of Appeals for the District of Columbia Circuit, which ruled that such appointments are constitutional only when vacancies occur and are filled during the annual break between congressional sessions.
That is a more literal reading of the Constitution that Scalia endorsed in his opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Had their view prevailed, future presidents would have been far more limited in making recess appointments.
Stiill, the high court’s ruling means that hundreds of decisions made by the labor board while dominated by Obama’s recess appointees 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. Consumer protection chief Richard Cordray has since been confirmed by the Senate, so he can reaffirm his prior actions.
Ronald Reagan made 232 recess appointments during his eight years in office. Bill Clinton and George W. Bush each made well more than 100. In 1903, Theodore Roosevelt made more than 160 recess appointments during one short break between congressional sessions.
To date, Obama has made only 32 recess appointments. But in this case, he did so to get around the Senate’s intransigence rather than its absence — something both liberal and conservative justices frowned upon during oral arguments in January.
The recess appointments power was more pertinent when senators left town on “horseback,” Justice Ruth Bader Ginsburg said at the time.
Added Justice Elena Kagan: “This is not the horse-and-buggy era anymore.”