Supreme Court Limits President's Appointment Powers


UPDATED: Thursday June 26, 2014 11:47 AM

The Supreme Court on Wednesday limited the president's power to fill high-level vacancies with temporary appointments, ruling in favor of Senate Republicans in their partisan clash with President Obama.

The court's first-ever case involving the Constitution's recess appointments clause ended in a unanimous decision holding that Mr. Obama's appointments to the National Labor Relations Board in 2012 without Senate confirmation were illegal. Mr. Obama invoked the Constitution's provision giving the president the power to make temporary appointments when the Senate is in recess.

Problem is, the court said, the Senate was not actually in a formal recess when Obama acted.

The administration had argued that the Senate was on an extended holiday break and that the brief sessions it held every three days were a sham that was intended to prevent him from filling seats on the NLRB.

The justices rejected that argument Wednesday.

"For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business," Justice Stephen Breyer wrote for the majority.

At the same time, the court acknowledged the broad powers the president retains to make recess appointments, dating back centuries.

"Presidents have made recess appointments to preexisting vacancies for two centuries, and the Senate as a body has not countered this practice for nearly three-quarters of a century, perhaps longer," Breyer wrote. "The Court is 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."

The issue of recess appointments receded in importance after the Senate's Democratic majority changed the rules to make it harder for Republicans to block confirmation of most Obama appointees.

But the ruling's impact may be keenly felt by the White House next year if Republicans capture control of the Senate in the November election. The potential importance of the ruling lies in the Senate's ability to block the confirmation of judges and the leaders of independent agencies like the NLRB. A federal law gives the president the power to appoint acting heads of Cabinet-level departments to keep the government running.

Still, the outcome was the least significant loss possible for the administration. The justices, by a 5-4 vote, rejected a sweeping lower court ruling against the administration that would have made it virtually impossible for any future president to make recess appointments.

The lower court held that the only recess recognized by the Constitution is the once-a-year break between sessions of Congress. It also said that only vacancies that arise in that recess could be filled. So the high court has left open the possibility that a president, with a compliant Congress, could make recess appointments in the future.

A recess appointment can last no more than two years. Recess appointees who subsequently won Senate confirmation include Chief Justice Earl Warren and Justice William Brennan, Federal Reserve Chairman Alan Greenspan, two current NLRB members and Consumer Financial Protection Bureau director Richard Cordray. Former UN Ambassador John Bolton is among recess appointees who left office because they could not win a Senate vote.

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