Justices’ decision opens fresh debate on limits of presidential power
The court for the first time recognized a president’s right to make appointments without Senate consent when Congress is in an extended recess in a two-year session. Justices said Obama couldn’t make appointments during pro forma sessions with senators gone and no business being done.
The New York Times
Thursday’s decision by the Supreme Court to curb President Obama’s ability to make recess appointments opened a fresh debate in the nation’s capital about the proper limits of presidential power in an era of intense partisan gridlock.
Republicans hailed the ruling as a repudiation of what they called Obama’s abuse of his constitutional power when he tried in 2012 to fill vacancies at two federal agencies without Senate confirmation.
But Obama and his allies noted that the decision stopped short of severely undermining the broader appointment power of the presidency, as an appeals court had ruled earlier. White House officials had worried that the court’s more conservative members might emerge victorious with a far more restrictive view of presidential power. They did not.
“We’re of course deeply disappointed in today’s decision,” Josh Earnest, the White House press secretary, 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.”
Obama had tried to maneuver around longstanding Republican efforts to block his appointments to the National Labor Relations Board (NLRB) by seating members on those panels during pro forma sessions of the Senate when almost all of the members were at home in their districts and no legislative business was being conducted.
The court ruled that the president’s actions violated the Constitution and said the Senate and House have the ultimate power to block such recess appointments by scheduling the minisessions when they want to. But the justices for the first time recognized the basic right of the president to make appointments without the consent of the Senate when Congress is in an extended recess during a two-year session, as it often is during the summer, around Christmas and in the spring.
Republicans said the decision amounted to a rebuke of the president at a time they are arguing that Obama is repeatedly exceeding his authority to get around a Congress that does not do what he wants it to.
“He picks and chooses what parts of the Constitution and duly passed legislation he wants to enforce or follow,” said Rep. Kevin McCarthy, R-Calif., the newly elected majority leader in the House. “The president’s attempt at illegitimate administrative appointments is a prime example of overreach. This bolsters the case for the House to take further action to ensure our laws are properly executed and our freedoms are protected.”
The decision comes a day after House Speaker John Boehner said he would seek legislation allowing the House to sue Obama over the president’s use of executive actions. Republicans say Obama has exceeded his authority, pointing to the president’s delaying of some parts of the Affordable Care Act and his granting of deportation deferrals to some immigrants who are in the country illegally.
White House officials have dismissed Boehner’s threats of a lawsuit as a stunt, saying Obama’s executive actions are based on the president’s well-established powers. They argue that the president has the right to act on behalf of the U.S. people where he can.
Earnest said the president “remains committed to using every element of his executive authority to make progress on behalf of middle-class families. The president is in no way considering scaling back” his executive actions.
Thursday’s case arose from a labor dispute involving a soft-drink bottling company in Yakima, Noel Canning. The labor board ruled against the company, saying it had engaged in an unfair labor practice by refusing to enter into a collective-bargaining agreement.
The company appealed, arguing that the labor board had been powerless to rule because a majority of its members had been appointed during a 20-day stretch when the Senate was convening every three days in pro forma sessions without conducting business. Obama, who viewed the sessions as a tactic to keep the Senate open so he could not make recess appointments, made the appointments anyway.
Since the members of the board had not been properly appointed, the company argued, its ruling was void.
Thursday’s decision illustrates how the question of presidential power is not always clear-cut.
In 2007, Democratic Senate leaders began holding the pro forma sessions — in which a single Washington-area member gavels the Senate in and out of session for 30 seconds every three days — to block recess appointments by President George W. Bush.
The practice continued after 2010, when Republicans took control of the House and effectively forced the Senate to continue holding the pro forma sessions. The Constitution says in Article 1, Section 5 that “neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days.”
But in January 2012, after trying unsuccessfully to persuade Republicans to allow appointments to the labor board and the Consumer Financial Protection Bureau, Obama’s legal team decided the tiny, pro forma sessions did not really count, and he had the authority to choose members for those panels without congressional approval.
The legal theory had never been tested, but former White House officials involved in the internal legal discussions said Obama believed that putting people on the panels was important enough to force a legal test of presidential powers, even if it meant that those powers might ultimately be curtailed by the court.
In the first test of the theory, the Court of Appeals for the District of Columbia ruled that Obama — and any president — had the power to make recess appointments only between the two-year sessions of Congress. And they ruled that only vacancies that occurred every two years could be filled.
The Supreme Court rejected that view, ruling that presidents can make appointments during recesses that occur in the middle of a two-year session. But justices limited the president’s power by saying that Congress has broad authority to define when it is in session and when it is not.