Supreme Court Unanimously Rules Against Obama Recess Appointments

The Senate, not the president, decides when the Senate is in recess
Supreme Court

Supreme Court / AP

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The Supreme Court ruled unanimously Monday that President Obama violated the constitution when he made recess appointments while the Senate was still in session.

The case centered on the tactics Obama used to fill three vacancies in the National Labor Relations Board, a federal labor arbiter. While the Senate was in pro forma session, the president filled the vacancies with two union lawyers and a Republican, giving Democrats a 3-2 majority on the board without the consent of the Senate.

Obama Solicitor General Donald Verrilli argued those pro forma sessions—during which a handful of senators enter into then exit session every few days—were not legitimate because no major action was taken.

“The definition of recess is when no business shall be conducted. And that’s exactly what the Senate said,” he said during oral arguments in January.

Three federal appeals courts rejected that argument, saying that the president cannot tell the Senate when it is in session. The nation’s highest court upheld the lower courts.

Justice Stephen Breyer wrote the decision, which was signed on to by the Supreme Court’s liberal bloc. Justice Antonin Scalia wrote a concurring opinion, which was joined onto by the court’s conservative bloc.

“The [Recess Appointment] Clause should be interpreted as granting the president the power to make appointments during a recess but not offering the president the authority routinely to avoid the need for Senate confirmation,” Breyer’s decision held. “The Clause does not say how long a recess must be in order to fall within the Clause, but even the solicitor general concedes that a 3-day recess would be too short.”

Scalia’s concurrence noted that the majority’s ruling is very narrow and warned that future problems could arise as a result.

“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.

The Noel Canning decision carries major implications in federal labor law. The NLRB issued hundreds of decisions between January 2012 and August 2013, when a new majority was appointed with Senate approval. All of those decisions can be reargued if plaintiffs choose to contest the NLRB’s judgment. The NLRB’s current 3-2 Democratic majority could see a backlog of cases as it rushes to reissue decisions.

This is not the first time the Roberts court has declared the NLRB’s make-up unconstitutional. The Supreme Court dismissed more than 1,000 NLRB decisions when it declared the two-member board did not have enough judges to issue rulings in the 2010 New Process Steel case. The NLRB was forced to reopen more than 100 cases.