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.
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