Justices curb Obama power on appointees

At issue are Senate recesses

The U.S. Supreme Court ruled that President Barack Obama exceeded his constitutional authority with appointments he made in January 2012.
The U.S. Supreme Court ruled that President Barack Obama exceeded his constitutional authority with appointments he made in January 2012.

WASHINGTON -- The U.S. Supreme Court on Thursday curbed the president's power to make temporary appointments without Senate approval, backing congressional Republicans and dealing a blow to President Barack Obama.

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The justices ruled unanimously that Obama exceeded his constitutional authority when he appointed three members of the National Labor Relations Board in January 2012. Four Republican-appointed justices said they would have gone even further in limiting the appointment power.

The case was the court's first look at a constitutional provision that lets the president make temporary appointments to high-level posts during Senate recesses. The decision leaves the Senate with the right to all but nullify the recess-appointment power by holding brief "pro forma" sessions every few days.

"We must give great weight to the Senate's own determination of when it is and when it is not in session," Justice Stephen Breyer wrote in the court's majority opinion.

Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito said they would have ruled on broader grounds. They said the recess-appointment power applies only after a year-long congressional session ends and before the next one begins, not during breaks within a session.

Writing for the group, Scalia also said valid appointments could be made only when the vacancy itself occurred while the Senate was adjourned.

"The limitation upon the president's appointment power is not there for the benefit of the Senate, but for the protection of the people," Scalia wrote.

But Breyer said practices dating back two centuries supported a broader interpretation. He said presidents have made thousands of intra-session appointments and that President James Madison, who served from 1809 to 1817, filled vacancies that had existed before a recess began.

"We are reluctant to upset this traditional practice where doing so would seriously shrink the authority that presidents have believed existed and have exercised for so long," he wrote.

Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer's opinion.

Breyer said the Senate was in session when Obama made the National Labor Relations Board appointments because lawmakers retained the power to conduct business during that time. He said any recess of fewer than 10 days would be "presumptively" too short to permit recess appointments.

White House press secretary Josh Earnest said the administration was "deeply disappointed" by the ruling.

"We disagree with the court's decision," Earnest said. "We're still reviewing it, but of course we'll honor it."

The court still preserved "some important components of the president's authority, and he will not hesitate to use it," Earnest said.

National Labor Relations Board Chairman Mark Gaston Pearce said in a statement that the board is analyzing what effect the decision will have on cases in which the recess appointees participated. The board now operates with a full complement of members, thanks to a change in Senate rules allowing a simple majority to confirm administration nominees.

The ruling raises questions about hundreds of decisions and orders issued by the labor board since 2012.

The board will need to rehear those cases, said Steve Bernstein, a labor lawyer at Fisher & Phillips in Tampa, Fla. Although the board may reaffirm its previous decisions in many of them, that is by no means a certainty, he said.

Industry groups that opposed the appointments said the decision invalidates the board's rulings.

"The board was not lawfully empowered to issue rulings and policies affecting the American workforce," Katherine Lugar, chief executive officer of the American Hotel & Lodging Association, a Washington-based lobbying group, said in a statement.

The Constitution says the president "shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." A separate provision requires the president to get the Senate's "advice and consent" on high-level appointments.

Obama's recess appointment of the National Labor Relations Board nominees infuriated Republicans, escalating partisan tensions over the president's nominees.

The president, saying lawmakers were in recess, appointed Sharon Block, Terence Flynn and Richard Griffin on Jan. 4, 2012. He also named Richard Cordray as a recess appointee to head the Consumer Financial Protection Bureau.

The rancor grew worse throughout 2012 and 2013, with Democrats accusing Republicans of unfairly obstructing Obama's picks for executive and judicial posts and Republicans contending that Democrats were subverting decades-old protections for the minority party.

Yet the immediate stakes in the National Labor Relations Board case shrank a few weeks after the court accepted the case last June when Senate Republicans and Democrats reached an agreement that cleared the way for confirmation of two new board nominees, plus Cordray.

Then late last year, Senate Majority Leader Harry Reid changed the chamber's rules to allow approval of all nominees, except those to the Supreme Court, by a simple majority rather than 60 votes. The move effectively stripped the minority party of the power to block almost all of Obama's nominees.

"Since President Obama took office, Senate Republicans have done everything possible to deny qualified nominees from receiving a fair up-or-down vote," Reid, D-Nev., said in a statement. "President Obama did the right thing when he made these appointments on behalf of American workers."

Senate Minority Leader Mitch McConnell, R-Ky., said in an emailed statement, "This administration has a tendency to abide by laws that it likes and to disregard those it doesn't."

"The president made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even bothering to wait for its advice and consent," McConnell said.

Republican Sen. John Boozman of Arkansas joined 41 senators in 2012 to file an amicus brief arguing that the president's appointments were an unconstitutional overreach of presidential power.

"This decision reaffirms our Founding Fathers' vision of a checks-and-balances system that ensures no branch of government has majority control," Boozman said in a written statement Thursday. "The President is not above the law. He must follow the Constitution and allow the Senate to perform its advice and consent role. Debating the qualifications of people who represent the U.S. and oversee our agencies is important to ensuring that the President is surrounded by good advisors who are capable of performing their roles."

Rep. Tom Cotton, R-Ark., blamed senate Democrats for not stopping the appointments at the time. He pointed in particular to Sen. Mark Pryor of Arkansas, his opponent in the November Senate race.

"I am relieved that the Supreme Court has voted unanimously to rein in President Obama's lawless actions. It is sad that we must rely on the Supreme Court to check President Obama's abuses of power because Senate Democrats like Mark Pryor continue to stand idly by while President Obama breaks the law and tramples our Constitution."

Pryor's campaign responded with a statement calling the Cotton release "unfortunate."

"I'm glad the Supreme Court ruled to reign in a practice too often abused by President Obama and previous administrations," Pryor said. "It's unfortunate that Congressman Cotton would twist this into a campaign issue, given that his brand of my-way-or-the-highway politics are responsible for Washington's partisan gridlock in the first place."

The other members of Arkansas' House delegation, Republican Reps. Steve Womack, Rick Crawford and Tim Griffin, all praised the decision.

Information for this article was contributed by Greg Stohr, Kathleen Hunter and Jim Snyder of Bloomberg News and by Sarah D. Wire of the Arkansas Democrat-Gazette.

A Section on 06/27/2014

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