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Supreme Court Curbs President’s Power


Supreme Court Curbs President’s Power to Make Recess Appointments

The Supreme Court on Thursday dealt a significant blow to executive power, cutting back on the president’s power to issue recess appointments during brief breaks in the Senate’s work.

The court ruled unanimously that President Obama had violated the Constitution in 2012 by appointing officials to the National Labor Relations Board during a short break in the Senate’s work when the chamber was convening every three days in short pro forma sessions when no business was conducted. Those breaks were too short, Justice Stephen G. Breyer wrote in a majority opinion joined by the court’s four more liberal members.

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Justice Breyer added that recess appointments remain permissible so long as they are made during a break of 10 or more days. But many experts say that if either house of Congress is controlled by the party opposed to the president, lawmakers can effectively block such appointments by requiring pro forma sessions every three days. Each house must get the approval of the other chamber for recesses of more than three days.
Still, Mr. Obama and the presidents who will succeed him avoided a far broader loss, one that could have limited recess appointments to breaks between Congress’s formal annual sessions and even then to vacancies that arose during those breaks. That was the approach embraced by the court’s four more conservative members.

Justice Antonin Scalia issued a caustic statement from the bench. “The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” he said.
The decision affirmed a broad ruling last year from a federal appeals court in Washington that had called into question the constitutionality of many recess appointments by presidents of both parties.

The immediate practical significance of Thursday’s decision was undercut by the Senate’s recent overhaul of its filibuster rules and by the Senate’s confirmation of a different slate of nominees to the labor board. Republican filibusters had frustrated the Obama administration and prompted its recess appointments.

But the constitutional ruling, involving the balance of power between the president and the Senate, was nonetheless momentous.

The Constitution’s recess-appointments clause says, “The president shall have power to fill up all vacancies that may happen during the recess of the Senate.”

Analyzing that language, a three-judge panel of the appeals court last year said that presidents may bypass the Senate only during the recesses between formal sessions of Congress. Two of the judges went further, saying that presidents may fill only vacancies that arose during that same recess.

The case arose from a labor dispute involving a soft-drink bottling company, 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.
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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 any business. Since the members of the board were not properly appointed, the company argued, its ruling was void.

In asking the Supreme Court to review the appeals court’s ruling in the case, National Labor Relations Board v. Noel Canning, No. 12-1281, the Obama administration sought an answer to only the broader questions decided by the appeals court. But the Supreme Court, acting on the suggestion of the company that had won before the appeals court, agreed to answer a narrower question, too: whether the president may make recess appointments when the Senate is convening every three days in pro forma sessions.

The administration said long tradition supported its position, noting that presidents of both parties have made many appointments in breaks during sessions of Congress. When the case was argued in January, Solicitor General Donald B. Verrilli Jr. asked the justices not to “repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington.”

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