Patterico's Pontifications

6/26/2014

Supreme Court Limits Recess Appointments

Filed under: General — Patterico @ 7:31 am

Tom Goldstein at SCOTUSBlog summarizes:

Here is the upshot of the decision. The President can make a recess appointment without Senate confirmation when the Senate says it is in recess. But either the House or the Senate can take the Senate out of recess and force it to hold a “pro forma session” that will block any recess appointment. So while the President’s recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked.

Big Media is portraying this as a setback to Obama:

The US Supreme Court today limited a president’s power to make recess appointments when the White House and the Senate are controlled by opposite parties, scaling back a presidential authority as old as the republic.

The case arose from a political dispute between President Obama and Senate Republicans, who claimed he had no authority to put three people on the National Labor Relations Board in January 2012 when the Senate was out of town.

He used a president’s power, granted by the Constitution, to “fill up all vacancies that may happen during the recess of the Senate.” But the Republicans said the Senate was not in recess at the time the appointments were made, because every three days a senator went into the chamber, gaveled it to order, and then immediately called a recess.

By a unanimous vote, the Supreme Court agreed that the Senate was not in recess, holding that it’s up to both houses of Congress to define when they’re in session or in recess. As a result of the decision, the Senate can frustrate a president’s ability to make recess appointments simply by holding periodic pro forma sessions, a tactic used in recent years by both political parties.

But the folks at SCOTUSBlog say Scalia is reading a long concurrence, saying that while he agrees with the unanimous Court that the appointments are invalid, there is no basis for recess appointments in the Constitution, period.

34 Responses to “Supreme Court Limits Recess Appointments”

  1. Ding.

    Patterico (1be348)

  2. Nah, Scalia says the vacancy as well as the appointment must occur when the Senate is in recess. Not to vacancies that occurred before the recess and the President sat on. It makes sense to me. If we can do without a government hog at the taxpayer feed trough when the Senate in session, we can do without him when the Senate is not in session

    nk (dbc370)

  3. Scalia wrote it, but Roberts, Thomas, and Alito also join.

    nk (dbc370)

  4. In basketball lingo, the President got stuffed.

    Jumping Jack (e54f0f)

  5. Does this invalidate the bunch of decisions made by the NLRB by the members appointed during a recess when Pres’ent Obama went ahead and made the appointments anyway ?

    Alastor (28af0b)

  6. I share nk’s reading of the concurrence: yes, Presidents can recess appoint, but only if both the initial vacancy and the appointment to fill that vacancy occur during an inter-session (annual) recess.

    Mitch (341ca0)

  7. nk (dbc370) — 6/26/2014 @ 8:28 am

    Scalia says the vacancy as well as the appointment must occur when the Senate is in recess. Not to vacancies that occurred before the recess and the President sat on.

    Even one day before?

    The text of the Constitution is:

    http://www.archives.gov/exhibits/charters/constitution_transcript.html

    Article. II.

    Section. 2.

    Clause 3:

    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.

    Sammy Finkelman (9257c5)

  8. This also means that Richard Cordray’s recess appointment as Director of the Consumer Finance Protection Bureau was void, as it happened at the same time as the NLRB appointments.

    See the list here (PDF) http://fas.org/sgp/crs/misc/R42329.pdf

    Kevin M (b357ee)

  9. Scalia may be right with a narrow reading, but the intent of the clause is to allow he President to fill vacancies when the Senate is not around to confirm. He has a better argument that the Senate is never gone so long nowadays as for it to be a real delay and the clause is an anachronism.

    But the court did not want to open up invalidation arguments on endless topics, so they went for the safety of historical usage. So, now the recess must be at least 10 days, although it isn’t clear that 11 days is long enough either.

    Little baby steps.

    Kevin M (b357ee)

  10. Except for the practical result THIS time, the decision is a text book example of judicial activism and overreach. Scalia’s concurrence is a blistering, and quite correct, indictment of the garbage which passes for judgment in today’s judiciary.

    The majority flat re-imagined history as so many Disney’s – all in the service of not humiliating the wondrous one, BHO. Actually, it is in service of denying textualism. Plain meaning MUST be ignored that judges arrogate unto themselves the power to write law. This decision is a perfect example of such.

    Sickening. Truly sickening.

    Ed from SFV (3400a5)

  11. In basketball lingo, the President got stuffed.

    Jumping Jack (e54f0f) — 6/26/2014 @ 8:30 am

    Yes… and posterized too.

    Colonel Haiku (2d77cf)

  12. The Preezy can’t declare the Senate out-of-session, which he was effectively doing to facilitate his abuse of authority. He had issued fewer EOs than either Clinton or GWB, but his were basically writing new laws, e.g., obamaCare, immigration.

    Colonel Haiku (8699d6)

  13. Scalia really did slap around the majority opinion for its selective abuse of raw numbers in “deciding” that intra-session recess appointments were absolutely “standard”, and that a “gentleman’s agreement” between the Senate and President could gratuitously amend the plain text of the Constitution.

    Sam (e8f1ad)

  14. Perhaps it is better to have 9-0 to slap down Obama’s excesses than to have a “controversial” 5-4 vote for something that has no additional practical impact.

    Note that, unless the Presidency and both houses of Congress are in the same hands, recess appointments are pretty much as limited as Scalia wants. If they are in the same hands, the issue is pretty moot anyway.

    Kevin M (b357ee)

  15. 9-0 gives protection against a conservative president.

    mg (31009b)

  16. Colonel Haiku (8699d6) — 6/26/2014 @ 10:49 am

    The Preezy can’t declare the Senate out-of-session,

    But he can call it into session.

    Article. II.

    Section. 3.

    ….he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;

    That used to happen at the start of a new Administration, when terms expired on March 4, a situation corrected by the Twentieth Amendment (the “Lame Duck” amendment) after 1933.

    Sammy Finkelman (9257c5)

  17. Note the second half of that clause, Sammy – the President can, when the House and Senate disagree on when to adjourn to, adjourn them both to *any date he wants*.

    This is a power which is ripe for abuse, and now there’s a reason to abuse it.

    aphrael (e777bc)

  18. I wish the people of the United States could make recess appointments when the President is out of session or taking a nap or playing golf or hanging out with Jay-Z & Beyonce.

    Elephant Stone (5c2aa0)

  19. the lawyers will have a field day/week/month/year(s) adjudicating the legality of issues decided by the NLRB, and CFPB, while these ‘recess appointments’ were serving. I think the CFPB will be the most seriously affected as Cordray had his fingers in everything.

    askeptic (8ecc78)

  20. Who in big media defended this? I’d like to see a list of old quotes of media experts saying this was constitutional.

    Amphipolis (d3e04f)

  21. Meanwhile the president wants 500 million dollars from congress to train and equip “moderate” rebels in Syria. *Sigh!

    The Emperor (4efdcc)

  22. 21. The Emperor (4efdcc) — 6/26/2014 @ 2:27 pm

    Meanwhile the president wants 500 million dollars from congress to train and equip “moderate” rebels in Syria. *Sigh!

    Not bad, except for teh wuesrtion of who they are.

    Meanwhile Syria bombed ISIS just over the Iraqi border.

    ISIS actually was not much fighting Syria, only other rebels.

    It’s difficult not to be on both sides of a war there.

    One problem with Obama is thatm at elast until now, he wanetd there to be only two sides.

    Sammy Finkelman (d22d64)

  23. Justice Scalia also dissented on the Aereo decision. he said it wasn’t the business of the Supreme Court to close loopholes. Also that the law wa sbeing left in a state of uncertainty.

    Sammy Finkelman (d22d64)

  24. I’m surprised that Justice Thomas did not write an opinion.
    This seemed to be one of those issues that he likes to take down
    as being nonsense

    seeRpea (a3ba80)

  25. Compared to what he gets away with, this is no slap down.

    AZ Bob (533fbc)

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  27. This decision cements that Breyer’s legal reasoning is only slightly more fractured than is Kennedy’s.
    One would suppose, too, that he never took Brevity-101.

    askeptic (8ecc78)

  28. This is apparently the first time, in 225 years, the Supreme Court has had to decide the exact parameters of the recess appointment clause.

    The NLRB, with its current majority can re-establish any never legally made rules.

    Sammy Finkelman (1b5048)

  29. 21. The Emperor (4efdcc) — 6/26/2014 @ 2:27 pm

    Meanwhile the president wants 500 million dollars from congress to train and equip “moderate” rebels in Syria. *Sigh!

    And nothing will happen at all until the fall. It’s symbolic non-action.

    Meanwhile Baghdad is slowly being surrounded on land. Inside Baghdad, the re-establshed Mahdi Army is not obeying Iraqi army orders and slowly starting to kill Sunnis, as politicians attempt to put together a national unity government by July 1.

    Some U.S. troops are there – their mission to analyze if the Iraqi Army can defend Baghdada and may help try to put a defense togetehr . Only 7 of the 14 divisions of the Iraqi Army are still of any use, and maybe there will be less, but it is a good idea to get down to the soldeirs who can be relied on.

    If Obama gives the OK, these American would also call in air strikes. Meanwhile armed Predator drones are flying over Baghdad just in case the Americans come under attack.

    Obama will not attempt any evacuation of Americans from Baghdad unless it is too late. You can count on that.

    And he probably anyway would prefer to defend it at that point.

    Sammy Finkelman (1b5048)

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  31. 17. aphrael (e777bc) — 6/26/2014 @ 12:48 pm

    Note the second half of that clause, Sammy – the President can, when the House and Senate disagree on when to adjourn to, adjourn them both to *any date he wants*.

    This is a power which is ripe for abuse, and now there’s a reason to abuse it.

    I think both Houses have to at least agree on the idea of adjournment, but just disagree on the date they will come back.

    I can imagine a situation where a president might want to cause the Senate to be out of session longer, but the Senate must have opened itself up to that possibility.

    The Twentieth amendment probably supercedes that clause to a limited degree.

    http://constitutioncenter.org/constitution/full-text

    Amendment XX

    SECTION. 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

    For now maybe a few decades Congress has been appointing a different day, usually 2 weeks later in January, but if both houses got deadlocked, when attempting to set a different day, the January 3 date would apply.

    In the past, before the dates the terms of members of Congress started were aligned with the date the session started, Presidents, especially newly inaugurated presidents, sometimes called the Senate into special session in order to get their nominees confirmed. Now it would seem maybe a president might prefer not to have the Senate in session, so he could give everyoe a recess appointment.

    They also didn’t hold hearings before the nminees actually were named, and the confirmaton process was fats, not the extremely complicated one, with all sorts of financial documents prepared and investigations that Senate Proxmire started around 1969

    Sammy Finkelman (9ec422)


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