The Supreme Court on Thursday greatly limited the ability of President Obama and future presidents to use recess appointments to circumvent congressional opposition to their judicial and executive nominees, ruling unanimously that Obama exceeded his power under the Constitution when he filled three federal positions while the Senate was on a brief break.
The justices upheld the basic right of the president to make recess appointments during a congressional recess, a power granted in the Constitution that has been used by every president since George Washington.
But as a practical matter, the decision is likely to make it nearly impossible for presidents to continue using recess appointments as a way to overcome Senate objections to their nominees as long as the opposition party controls either the Senate or the House.
As a result, the case — the court’s first ruling on the subject — will make the recess appointments power “almost wholly unusable,” said Harold Bruff of the University of Colorado Law School, author of a forthcoming book on presidential powers. “The only time he will be able to use it is when he has majorities in both houses in Congress, and then he doesn’t need it.”
The court’s four most conservative members had hoped to go even further in restricting the executive power of recess appointments. They complained in a separate concurring opinion that the other justices had “bent over backwards” to maintain the presidential powers at the expense of the Senate.
“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,” Justice Antonin Scalia wrote.
But writing for the majority, Justice Stephen Breyer said the presidential power to fill vacancies during a Senate recess “is reinforced by centuries of history, which we are hesitant to disturb.”
Nevertheless, justices agreed that the three-day break Obama used to fill the posts on the National Labor Relations Board in 2012 was too short to count as a recess.
Because the historical record indicates that most recess appointments have occurred in breaks of 10 days or more, Breyer said that would be the “presumptive” minimum for most future recess appointments, although he said it was possible a national emergency might require action in a shorter period.
But in the increasingly partisan gridlock of Washington, even that power will be difficult to exercise.
Since November 2007, when Democrats controlled the Senate and George W. Bush was president, the Senate has used a tactic called pro forma sessions to keep from going on a formal recess for longer than three days. Normally, no business is conducted in such sessions, and they only require the presence of one senator to gavel the chamber open.
That tactic was successfully used by Democrats to block Bush from making recess appointments.
When Obama came into office, Senate Republicans — though in the minority — blocked many of his appointments by filibuster, leading the president, as many of his predecessors had, to fill vacancies by recess appointment.
But in a new twist, House Republicans began relying on another arcane rule that requires both chambers to agree before either can go on an extended break. Republicans used that rule to require the Senate to continue the use of pro forma sessions when it wanted to go on break, which they thought would prevent Obama from making any recess appointments.
But Obama decided to test his presidential powers by making the appointments anyway, leading to Thursday’s rebuke from the Supreme Court. Last year, the Democratic-controlled Senate scrapped the long-standing filibuster rule, allowing many of the president’s nominees to be approved during regular sessions.
The dispute arose from a lawsuit brought by a Pepsi-Cola bottler objecting to a ruling against the company by the NLRB. Backed by the U.S. Chamber of Commerce, the bottler challenged the ruling by disputing the validity of the three Obama appointments.
White House Press Secretary Josh Earnest said Thursday that the administration was deeply disappointed, but “pleased that the court recognized the president’s executive authority as exercised by presidents going all the way back to George Washington.”
The court’s decision is likely to invalidate not only the NLRB’s decision in the Pepsi bottler’s case, but 100 other board decisions made during the time that the three recess appointees served.
In August 2013, the Senate approved new appointees to the NLRB after the recess appointees resigned. That could allow the newly constituted board, with a Democratic majority, to reaffirm those decisions now under challenge.