Supreme Court curtails president's recess appointment powers

The U.S. Supreme Court on Thursday delivered a blow to President Barack Obama by cutting back the power of the White House to temporarily fill senior government posts without Senate approval.

In a ruling that will constrain future presidents as well, 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 presidents’ ability to make so-called recess appointments without Senate approval, but the court did not go as far as it could have gone in restricting executive powers.

The decision, written by Justice Stephen Breyer, could especially hamper the Obama administration if Republicans win control of the Senate in the November elections. They already control the House of Representatives. The decision also is likely to make it more difficult for the president to make appointments of his choosing during the last two years of his term.

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.

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

The complicated legal issue boils down to when the Senate is formally in recess. Only then do the president’s recess appointment powers kick in. In Thursday’s ruling, the court limited the definition of the recess, therefore reducing the circumstances in which presidents can make recess appointments.

The court said that there is no recess when the Senate is holding so-called pro-forma sessions, when no business is being conducted but the Senate is not formally adjourned. But the court did not cut back on the president's power to make recess appointments in between Senate sessions or recesses during a legislative session.

Although the court was unanimous on the outcome, the court was divided on its legal reasoning. Justice Antonin Scalia wrote a concurring opinion in which he was joined by his conservative colleagues.

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.

With the intervention of senior Republicans, the U.S. Chamber of Commerce and other business interests, the Yakima, Washington-based company's case has become a much broader fight over the president's ability to make appointments while the Senate is in recess and what exactly constitutes a recess.

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 – valid for up to two years – of officials who otherwise would have had difficulty winning Senate confirmation.

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.

Reuters