The U.S. Supreme Court unanimously ruled today that President Barack Obama violated the Constitution by making recess appointments to the National Labor Relations Board in January 2012, when the U.S. Senate was technically in session. The Congressional Research Service produced an excellent backgrounder on the legal issues surrounding that set of appointments. You can find today’s opinions here (pdf). Writing for the majority, Justice Stephen Breyer concluded, “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.” The Obama administration had argued that the Senate was for all practical purposes in recess on January 4, 2012, since no real business is conducted during pro-forma sessions a few minutes long every three days. Justices Anthony Kennedy, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg joined in the majority opinion.
Today’s ruling is less far-reaching than it could have been; Justice Antonin Scalia’s opinion concurring in judgment only would have much more severely restricted presidential powers to make recess appointments. Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas joined that opinion.
Since the Senate changed its rules last year to make it much more difficult for the minority to block presidential appointees, Obama has less reason to resort to recess appointments. But that could change if Republicans gain a Senate majority after this November’s elections.
Iowa’s senior Senator Chuck Grassley hailed today’s ruling in a Senate floor speech that I’ve posted below. I haven’t seen any official comment from Senator Tom Harkin. He is among those who supported the president’s recess appointments, citing “unprecedented abuses of process” by Senate Republicans who sought to prevent the National Labor Relations Board from operating by refusing to confirm any nominee.
UPDATE: Added a few points Lyle Denniston raised below.
Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
The Supreme Court’s Decision on Recess Appointments
Thursday, June 26, 2014Mr/Mm President, I rise today to praise the Supreme Court’s decision to strike down President Obama’s illegal recess appointments.
Article II, Section 2 of the Constitution provides for only two ways in which Presidents may appoint certain officers. First, it provides that the President nominates, and by and with the advice and consent of the Senate, appoints various officers. Second, it permits the President to make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess. On January 4, 2012, the President made four appointments. They were purportedly based on the Recess Appointments Clause. He took this action even though they were not made, in the words of the Constitution, “during the recess of the Senate.”
These appointments were blatantly unconstitutional. They were not made with the advice and consent of the Senate. And they were not made “during the recess of the Senate.”
In December and January of 2011 and 2012, the Senate held sessions every three days. It did so precisely to prevent the President from making recess appointments. It followed the same procedure as it had during the term of President Bush, with the insistence of Majority Leader Reid. President Bush declined to make recess appointments during these periods. But President Obama chose to attempt to make recess appointments despite the existence of these Senate sessions. As the Supreme Court said today,
“F]or 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.”No President in history had ever attempted to make recess appointments when the Senate said it was in session. President Obama failed to act “consistent with the Constitution’s broad delegation of authority to the Senate to ‘determine the Rules of its Proceedings,'” as the Constitution states. These illegal appointments represent just one of the important areas where President Obama has disregarded the law with his philosophy of the ends justify the means. We should all be thankful the Supreme Court has reined in this kind of lawlessness on the part of this Administration.
The Supreme Court was called upon to decide whether President Obama could make recess appointments even when the Senate was in pro forma session. Fortunately, for the sake of the Constitution and the protection of individual liberty, the Supreme Court said he did not.
This is a significant decision. It is the Supreme Court’s biggest rebuke to any President since 1974, when it ordered President Nixon to produce the Watergate tapes. The vote was unanimous. It included both Justices that President Obama appointed. That shows the disregard in which the President held this body and the Constitution when he made these appointments. Thanks to the Supreme Court, the use of recess appointments will now be made only in accordance with the views of the Founding Fathers.
It is worth keeping in mind what the President, the Justice Department, and the Senate said at the time of these appointments. The President said that his nominees were pending and he would not wait for the Senate to take action if that meant that important business would be done. But the Supreme Court has made clear that failure to confirm does not create presidential appointing power.
The appointments were so blatantly unconstitutional that originally, there was speculation that the Justice Department had not approved their legality. But in fact, the Department’s Office of Legal Counsel had provided a legal opinion that claimed to justify the appointments. Its reasoning was preposterous. It defined the same word “recess” that appears in the Constitution in two different places differently, and without any justification. It claimed that the Senate was not available to do business, so that it was in recess, when the President signed legislation that the Congress passed during those pro forma sessions. The Department allowed the President, rather than the Congress, to decide whether the Senate was in session.
As today’s Supreme Court decision makes clear, the OLC opinion was an embarrassment. The OLC opinion furthered a trend for that office from one which gave the President objective advice about his authority to one which provided legal justification for whatever action he had already decided he wanted to take. Perhaps now that the Office has been so thoroughly humiliated, it will hopefully conclude that the Department and the President will be better served by returning to its former role as a servant of the law and not of the President.
The other statements to keep in mind were from senators. No senator of the President’s party criticized President Obama for making these clearly unconstitutional appointments. Rather than protect the constitutional powers of the Senate and the separation of powers, they protected their party’s President. Those were not the Senate’s best moments. This underscores again the need to change the leadership of this Senate.
Appointment powers and the separation of powers are not simply constitutional concepts. They exist not so much to protect the branches of government, but to safeguard individual liberty. In Federalist 51, Madison wrote that the “separate and distinct exercise of the different powers of government” is “essential to the preservation of liberty.”
President Obama’s unconstitutional recess appointments are part of a pattern in which he thinks that if he cannot otherwise advance his agenda, he can unilaterally thwart the law. Whether it is with respect to drugs, immigration, recess appointments, health care, and a number of other areas, President Obama has concluded that he can take unilateral action regardless of the law. And the Justice Department has aided and abetted him. Praise to the Supreme Court for forcing him to confront the errors of his ways and for enforcing the constitutional structure that protects our freedom.
From Lyle Denniston’s analysis at SCOTUSblog:
The Constitution as finally ratified is now well over two centuries old, but the new decision marked the first time the Court had given its view of the meaning of a clause in Article I that gave presidents some power to fill government offices when the Senate was not in town and thus could not join in the shared assignment of passing upon such appointments.
Whatever those who wrote the original Constitution might actually have intended by what they wrote in that clause, the Court majority said the real clues to its meaning are found in some two centuries of “compromises and working arrangements” between the branches of government at opposite ends of Pennsylvania Avenue in Washington.
The split within the Court was as vivid an example as can be given of constitutional pragmatism winning out over constitutional formalism, and a very clear illustration of how the Constitution gets some of its most basic meaning from experience rather than from logic or hard-and-fast legal rules. […]
The one part of the controversy about which the Court said nothing was the legality of the actions that members of the National Labor Relations Board had taken when its quorum was made up of members who got their appointments during Senate recesses – appointments that Thursday’s ruling found to be illegal.
The board has since gotten a full membership of five members whose appointments were ratified by the usual constitutional Senate advise-and-consent function. That properly filled board presumably has the option of revisiting each one of the potentially questioned rulings and ratifying them as if they were doing so for the first time.