WASHINGTON – The Supreme Court ruled unanimously Thursday that President Barack Obama exceeded his constitutional authority in making high-level government appointments in 2012 when he declared the Senate to be in recess and unable to act on the nominations.
Obama made appointments to the National Labor Relations Board at a time when the Senate was holding pro forma sessions every three days precisely to thwart the president's ability to exercise the power.
“The Senate is in session when it says it is,” Justice Stephen Breyer wrote for the court, stressing that if the Senate is able to conduct business, that is enough to keep the president from making recess appointments.
But the court stepped back from handing Obama – and those who will follow him in the Oval Office – a more substantial loss. A bare majority of the justices upheld, in theory at least, the president's ability to make recess appointments when the Senate is indeed on extended break, saying history weighs in favor of a broad power.
The decision comes at a time when Republican opposition to the president's policies and Obama's vow to bypass a gridlocked Congress by using his executive powers have consumed Washington.
Although Breyer said the court hesitated to “upset the compromises and working arrangements that the elected branches of government themselves have reached,” it is the lack of such cooperation that brought the dispute to the court for the first time in the more than 200-year history of the Constitution.
The court's decision did not seem to encourage the two sides to come together. Republicans said the decision vindicated their view that Obama oversteps his constitutional authority in all manner of policy decisions. “A unanimous Supreme Court,” said Senate Minority Leader Mitch McConnell of Kentucky, has rejected Obama's “brazen power grab.”
Sen. Dan Coats, R-Ind., praised the U.S. Supreme Court decision Thursday to restrict presidential authority for making appointments without Senate approval.
“This check on executive power is essential to maintaining the integrity of our republic,” Coats said in a statement, referencing the constitutional provision that requires “the advice and consent of the Senate” for many officers appointed by the president.
He added: “As a former senator and lecturer on constitutional law, this president should have known better. President Obama has frequently boasted of his intention to bypass Congress on a range of issues, and I hope this unanimous rebuke will cause him to reflect on what it means to exercise executive authority with respect for the elected representatives of the American people.”
White House press secretary Josh Earnest said Obama would not hesitate to use his executive power in the remainder of his term. The administration was “deeply disappointed” with the court's decision, Earnest said.
“We are, however, pleased that the court recognized the president's executive authority as exercised by presidents going all the way back to George Washington.”
As a practical matter, the decision means hundreds of decisions made by the NLRB are in legal limbo and may have to be taken up again, an agency spokesman said. Labor lawyers and others who do business with the board said the decisions are likely to be reaffirmed because it now has a majority of confirmed members nominated by Obama.
The justices employed Founding-era documents and the long history of recess appointments – there have been thousands of them – to interpret the Constitution's recess clause. It says the president “shall have power to fill up all vacancies that may happen during the recess of the Senate.”
There was more riding on the outcome of the case before Senate Democrats changed the filibuster rules last year to make it easier for the president's nominees to be confirmed on a majority vote. But the conflict could arise whenever one party controls the executive branch and the other the Senate.
It was the question of pro forma sessions that had prompted the case. Senate Democrats started such sessions in 2007 to prevent President George W. Bush from making recess appointments. Despite encouragement from his advisers to challenge the legitimacy of the sessions, he declined.
But when Obama became president and the membership of the NLRB fell to two members because Senate Republicans blocked votes on the president's three nominees, Obama took action. Despite the pro forma sessions, he took note of the Senate's declaration that no business would be conducted and made his nominees recess appointees.
A bottling company in Washington state that lost an NLRB ruling challenged the legitimacy of the members, and a panel of the U.S. Court of Appeals for the D.C. Circuit went beyond the question of pro forma sessions to greatly restrict the president's power.
Judge David Sentelle said the Constitution's reference to “the Recess” means that appointments are allowed only during the recess between sessions of the Senate, not when the Senate is simply on a break such as a summer recess.
Additionally, the panel said the president has the authority to make appointments only to vacancies that arise during a recess, which would significantly limit a president's ability to use the recess appointment power.
Brian Francisco of The Journal Gazette contributed to this story.