Updated 12:37 pm ET
The Supreme Court today in a unanimous decision held that President Obama’s 2012 temporary appointments to the National Labor Relations Board were illegal, finding that the Senate was not formally in recess when Obama acted.
Obama had contended that the Senate was in de facto recess and that its attempts to formally remain in session were a sham. But the Court went with de jure instead, ruling that Obama had broken the letter of the law.
“The Senate is in sessions when it says that it is,” the Court wrote.
The decision represents a win for Republicans, who lately have stepped up their efforts to portray the White House as a haven for lawlessness where the prerogatives of the other branches of government are routinely trampled.
The majority opinion in the case was written by Justice Stephen Breyer and joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. A concurring opinion was written by Antonin Scalia was joined by Chief Justice Roberts and Justices Thomas and Alito.
The court’s four most conservative justices voiced strong objections, though, and the ruling is hardly a complete win for Republicans, who had hoped for a decision that would almost entirely end the president’s power to make recess appointments at all.
The court’s five liberals and moderates prevailed over the conservatives, who would have gone further by ruling that a president can only make recess appointments during the period between year-long sessions, and then only if the vacancies occur during the recess, as they say the letter and intent of the Constitution stipulates.
Instead, the liberals decreed that a recess in which an appointment can be made must simply last at least ten days, a determination Justice Antonin Scalia derided as an example of “vague, court-crafted limitations with no textual basis.”
In fact, the recess appointment was created to ensure government continues to function back in the days when lawmakers spent months outside of Washington and back in their home states – otherwise known as the good ‘ole days – and couldn’t confirm appointments to vacancies that arose and needed to be filled while they were out of town. Scalia is entirely right in contending that the Obama White House – and its predecessors – have simply created new power for the president entirely unintended by the Founders, who sought to limit executive authority.
Nevertheless, if the Senate goes Republican, GOP members can almost completely bar Obama appointments they don’t like. At that point, they can keep the Senate from recessing for more than ten days and will be able to reject nominees by a simple majority vote.