President Barack Obama overstepped his authority when he filled vacancies on the National Labor Relations Board in 2012 while Congress was not in an official recess, the U.S. Supreme Court ruled today.
In a unanimous decision, the justices said Congress had to be in recess for at least 10 days before the president could invoke his constitutional authority to make recess appointments to independent agencies. Neither house of Congress can take more than a three-day break without the other’s consent.
Obama had argued the Senate was in a de facto recess for an extended holiday break, even though it held very brief, “pro forma”sessions every three days to avoid taking a full recess. The White House insisted those sessions were a sham devised only to thwart the presidential appointments.
“When the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business,”the president cannot make recess appointments, Justice Stephen G. Breyer wrote in the majority opinion.
The case was unique for the court, since it had never ruled on the Constitution’s Recess Clause before and had no precedent on which to base its decision.
Although Obama lost the main part of his case, his presidential authority didn’t suffer as big a blow as it could have. Lower courts that weighed in on the case ruled Congress only goes into recess during the once-a-year break between sessions and that the president only has the authority to fill vacancies that arise during that break.
But in a split, 5-4 decision, the high court overturned that ruling. Writing for the majority, Breyer said a broader reading of the Recess Clause is reinforced by centuries of history, “which we are hesitant to disturb.”Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined him in the majority
Justice Antonin Scalia, reading the minority dissent from the bench, called the decision “judicial adventurism.”
“This issue has been the subject of a long-simmering interbranch conflict that we ought to resolve according to our best lights, rather than by deferring to an overreaching Executive Branch,”Scalia said. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito joined in the dissent.
Although Obama protested the pro-forma sessions as a way to limit his constitutional authority, it was Senate Majority Leader Harry Reid, D-Nev., who devised the strategy to stymie former President George W. Bush’s recess appointments. But when it was used against their president, Senate Democrats decided to detonate the so-called “nuclear option,”changing the filibuster rules to allow nominee confirmation with a simple majority vote.
While Obama has not made as many recess appointments as his predecessor—32 to 171—he was the first to attempt to make a recess appointment when Congress explicitly said it was not in recess.