The Supreme Court stood up to Obama. It was a unanimous decision, but not entirely so.
The Supreme Court on Thursday said President Obama had violated the Constitution when he bypassed the Senate to appoint officials to the National Labor Relations Board during a brief break in the Senate’s work.
But the larger message of the court’s majority opinion, written by Justice Stephen G. Breyer and joined by its four more liberal members, was that there is a role for recess appointments so long as they are made during a recess of 10 or more days.
Justice Antonin Scalia agreed with the result in the case but issued a caustic concurrence 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.
“We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business,” Justice Stephen Breyer wrote in the majority decision.
Having concluded that the Senate was in session during pro forma sessions, the majority provided historical context showing how unprecedented the NLRB appointments were.
“[T]hough Congress has taken short breaks for almost 200 years, and there have been many thousands of recess appointments in that time, we have not found a single example of a recess appointment made during an intrasession recess that was shorter than 10 days,” Breyer wrote. “Nor has the solicitor general.”
Justices Elena Kagan, Sonia Sotomayor, Anthony Kennedy and Ruth Bader Ginsburg joined Breyer’s decision.
Justice Antonin Scalia concurred in the judgment, but wrote a separate opinion describing recess appointments as an anachronism in an age of high-tech communication devices. Chief Justice John Roberts and Justice Samuel Alito and Clarence Thomas signed on to Scalia’s opinion.
Scalia’s opinion sought to further constrain executive power, saying recess appointments are only constitutional when vacancies arise during a true recess, and expressed concern about the standards set by the majority.
“The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments,” Scalia wrote.
Sen. Ted Cruz, R-Texas, cheered the court’s check on “President Obama’s unlawful abuse of the president’s recess appointments power.”
“This marks the 12th time since January 2012 that the Supreme Court has unanimously rejected the Obama administration’s calls for greater federal executive power,” Cruz said in a press release.
Senate Majority Leader Harry Reid, D-Nev., responded to the ruling by urging reform to Senate rules that require a 60-member majority to move legislation and nominations.
The interesting question is whether the liberal justices would have even gone this far if Reid hadn’t declared war on the filibuster.