Weather Forecast

A woman walks to the Supreme Court in Washington June 19, 2014. REUTERS/Joshua Roberts

Top court curbs presidential power on recess appointments

Email Sign up for Breaking News Alerts
News Brainerd,MN 56401
Brainerd Dispatch
Top court curbs presidential power on recess appointments
Brainerd MN 506 James St. / PO Box 974 56401

WASHINGTON (Reuters) - The U.S. Supreme Court on Thursday ruled against President Barack Obama by cutting back the power of the White House to temporarily fill senior government posts when facing partisan opposition in Congress, although it stopped short of a more sweeping decision against executive authority.


In a ruling that will constrain future presidents, the court held on a 9-0 vote that the three appointments Obama made to the U.S. National Labor Relations Board (NLRB) in 2012 were unlawful. The decision limits the ability of presidents to make so-called recess appointments without Senate approval.

Although the court was unanimous on the outcome, the court was divided 5-4 on its legal reasoning. Justice Antonin Scalia wrote a fiery opinion, joined by his conservative colleagues, saying he would have gone further in limiting the recess appointment power. Justice Anthony Kennedy, the court's regular swing vote, joined liberal colleagues in the majority.

The ruling comes at a time of Washington partisan gridlock. Obama since the outset of his presidency in 2009 has been locked in a struggle with congressional Republicans who have fought virtually every major initiative. They have accused the Democratic president of overstepping his constitutional authority.

The court upheld the president's power to make recess appointments in between Senate sessions or recesses during a legislative session. Its narrow ruling said only there is no recess when the Senate holds so-called pro-forma sessions during which no business is conducted but the Senate is not formally adjourned.

The majority decision, written by Justice Stephen Breyer, could especially hamper the Obama administration if Republicans win control of the Senate in Nov. 4 elections. They already control the House of Representatives.

The ruling has little immediate impact because Democrats, who currently control the Senate, pushed through a rule change in November 2013 that made it harder for Republicans to block the president’s nominees. Senate leaders from both parties welcomed the ruling.

Senate Majority Leader Harry Reid, a Democrat from Nevada, said the ruling “underscores the importance” of the Senate rule change last year.

“Without that reform and with today’s ruling, a small but vocal minority would have more power than ever to block qualified nominees from getting a simple up-or-down vote,” he said.

Kentucky Republican Mitch McConnell, the Senate minority leader, said: "All Americans should be grateful for the court's rebuke of the administration." Republican senators had filed court papers urging the court to rule against the administration.

Presidents from both parties have long used the recess appointment power to avoid obstruction from members of Congress of the opposite party. Senators have the ability to delay or block altogether a president’s nominees, meaning they might never be confirmed.


Breyer wrote that the recess appointment power is only triggered once the Senate has been in recess for 10 days. He rejected the Obama administration's argument that the appointment power needed to be expansive to overcome political differences between branches of government that prevent nominees from being confirmed.

The recess appointments clause "is not designed to overcome serious institutional friction," he wrote. The majority was hesitant to issue a broader ruling because it would have brought into question hundreds of appointments made over the years, Breyer added.

Reading from the bench, Scalia was insistent that the court should have gone further, saying that presidents have over the years treated the need to have nominees confirmed by the Senate as an "unreasonable burden."

Scalia would have favored ruling that the president could only make recess appointments in formal recesses between Senate sessions when the vacancies in question arose during that recess.

In Thursday's ruling, the majority "sweeps away the most important limitations the Constitution places on the president's recess appointment power," Scalia said.

The court ruled in a case in which soft drink bottler Noel Canning Corp challenged an NLRB ruling against it. The company argued the ruling was invalid because some of the NLRB board members on the panel that issued it were recess appointees improperly picked by Obama.

The U.S. Chamber of Commerce and other business interests has intervened in the Yakima, Washington-based company's case.

Obama used his recess appointment power to name three members to the five-member NLRB in January 2012. Democratic and Republican presidents have made many such temporary appointments of officials who otherwise would have had difficulty winning Senate confirmation. The appointments are valid for up to two years.

A Senate deal in July 2013 paved the way for the confirmation of five NLRB members, which limits the practical impact of the decision. The board will, however, have to reassess all the decisions that were made when the temporary appointees were in office.

The Obama administration said it was following the long-established interpretation of the recess appointments clause of the U.S. Constitution, dating back to President George Washington.

Noel Canning and its backers contended that Obama ignored the original intent of the Constitution's drafters, who included the recess appointments clause to ensure the government could continue to function when the Senate was in recess for months at a time and senators would travel to Washington on horseback.

The case is NLRB v. Noel Canning, U.S. Supreme Court, No. 12-1281.


Reporting by Lawrence Hurley.