Supreme Court curtails presidential recess appointment powers

McClatchy Washington BureauJune 26, 2014 

— The Supreme Court on Thursday modestly curtailed presidents’ power to unilaterally appoint officials while the Senate is in recess.

In a defeat for President Barack Obama, and others who will follow him into the White House, the court unanimously ruled that Obama improperly appointed two members to the National Labor Relations Board during an ultra-brief Senate recess.

“Three days is too short a time to bring a recess within the scope of the (Recess Appointments) Clause,” Justice Stephen Breyer wrote. “Thus we conclude that the President lacked the power to make the recess appointments here at issue.”

In a separate decision Thursday, the court struck down a Massachusetts law that establishes a buffer zone around abortion clinics. The court still has a key case yet to decide before justices start their summer recess, with a decision pending on whether corporations can claim religious exemptions from the Obamacare contraceptive mandate.

The recess appointment decision issued Thursday has been among the court’s most highly anticipated, because of its potential to tilt the balance of power between Congress and the White House.

Citing “historical practice,” Breyer said that “a recess of more than three days but less than 10 days is presumptively too short” to allow the president to make a recess appointment.

“We add the word ‘presumptively’ to leave open the possibility that some very unusual circumstance—a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response—could demand the exercise of the recess-appointment power during a shorter break,” Breyer noted.

At the same time, the court’s ruling was narrower than some conservatives had hoped for. Justices stressed that presidents retain authority to appoint officials during longer recesses, and they rejected arguments that would have further limited the vacancies that might be filled.

All nine justices agreed that Obama’s two National Labor Relations Board appointments were improper. The court’s four most consistently conservative justices, though, also signed on to an unusually long concurring opinion that argued for stricter limits on the White House.

“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,” Justice Antonin Scalia wrote.

In an unusual move, Scalia read at length a portion of his concurring opinion from the bench.

The case decided Thursday deals with a provision of that Constitution that authorizes presidents to make such appointments “during the Recess of the Senate, which shall expire at the end of their next session.”

A family-owned company called Noel Canning ran afoul of the NLRB in February 2012, when the board upheld an administrative judge’s ruling against the company in a contract dispute with Teamsters Local 760.

Two of the three labor board members ruling against Noel Canning, Democrat Sharon Block and Republican Terence Flynn, had been appointed by President Barack Obama in January 2012. They had not, however, been confirmed by the Senate.

Instead, facing Senate Republicans’ resistance, Obama gave recess appointments to the two nominees.

Senate Republicans joined Noel Canning in challenging the appointments’ legitimacy, as officials in South Carolina and 16 other right-to-work states. Any NLRB decisions made by Block and Flynn are now cast into doubt.

Myriad challenges already have been lodged by employers nationwide. The challenges have been on hold pending the Supreme Court’s Noel Canning decision.

The Noel Canning win also could undercut actions taken at the new Consumer Financial Protection Bureau by Richard Cordray, who was initially given a recess appointment to head the agency many Republicans oppose.

The U.S. Court of Appeals for the District of Columbia Circuit ruled that for appointment purposes, a “recess” is only between the first and second session of a Congress. For instance, the first session of the current Congress expired Dec. 26, 2013, and the second session commenced Jan. 3, 2014.

The D.C. appellate court also said that the recess appointments can only be made for positions that became vacant during the recess.

The Supreme Court on Thursday rejected those conclusions.

The court challenges undercut a common presidential tool. President Bill Clinton made 139 recess appointments and President George W. Bush made 171, according to the Congressional Research Service. Through June 2013, Obama made 32 recess appointments.

Senate Democrats used pro forma sessions to block President George W. Bush’s Republican nominees. A presiding senator gavels the Senate into a very brief session, typically with no other senators present. The theory is that by doing this every few days, the Senate avoids starting a recess.

During Obama’s tenure, Senate Republicans, with the help of GOP lawmakers in the House of Representatives, have similarly forced the pro forma sessions.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10.

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