Supreme Court rejects Obama’s power grab: Justices unanimously invalidate NLRB recess appointments

The White House got a big reality check from the Supreme Court this morning. In a unanimous decision, the High Court invalidated recess appointments President Barack Obama made to the National Labor Relations Board in January 2012 because the Senate was technically in session.

The Constitution, in Article II, Section 2, allows a president to make appointments to fill vacancies when the Senate is not in session. These nominations are reviewed by the Senate when it reconvenes and must be approved by two-thirds of that chamber.

The issue at hand is that the Senate was in pro forma session — meaning that it had not formally adjourned — when President Obama made the appointments. The opinion in National Labor Relations Board v. Noel Canning, written by Justice Stephen Breyer, makes very clear that President Obama exceeded his constitutional authority by trying to sneak in bureaucrats who would rubber-stamp his and big labor’s agenda.

“In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for pur­poses of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business,” Breyer wrote. “The Senate met that standard here.”

“The standard we apply,” he continued, “is consistent with the Constitu­tion’s broad delegation of authority to the Senate to determine how and when to conduct its business.”

The Court seemed likely to reject the appointments when it heard the case in January, with even its most Leftist justices reacting skeptically to the White House’s arguments. At least three other federal courts had already invalidated the appointments.

But, as evidenced by the 2012 Obamacare decision, one can’t read too much into what the justices say as both sides present their oral arguments. There was, however, cautious optimism that the Court would strike down the appointments.

The Court also rejected arguments that gridlock in the upper chamber makes it difficult to push through executive-level appointments. “[T]he Recess Appointments Clause is not designed to overcome serious institutional friction,” Breyer explained. “It simply provides a subsidiary method for appointing officials when the Senate is away during a recess. Here, as in other contexts, friction between the branches is an inevitable consequence of our constitutional structure.”

Justice Antonin Scalia, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, expressed concern that the opinion didn’t go far enough, preferring a textural reading of the Constitution.

“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.”

“The majority’s insistence on deferring to the Executive’s untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court’s role in controversies involving the separation of powers andthe structure of government. I concur in the judgment only,” he added.


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