Supreme Court Says Obama's NLRB Recess Appointments Were Unconstitutional

The Supreme Court ruled Thursday that President Barack Obama’s recess appointments to fill slots on the National Labour Relations Board in 2012 were unconstitutional. But the high court also generally gave the president “substantial recess appointment power” during appropriate windows, SCOTUSblog’s Tom Goldstein said.

The unanimous opinion, which was written by liberal Justice Stephen Breyer, said that Congress — and only Congress — decides when it is in session and when it is in recess. It ruled the Senate was not in a formal recess when Obama made the 2012 appointments — therefore, they were illegal. (Here’s a link to the opinion.)

“Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess,” the opinion read. “Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.”

The case, National Labour Relations Board V. Canning, was a challenge to limit the president’s ability to make appointments of federal officials while the Senate is in recess. It specifically challenged three of Obama’s recess appointments to the National Labour Relations Board (NLRB), an independent government agency that conducts elections for labour-union representation and investigates allegations of unfair labour practices.

SCOTUSblog’s Goldstein explains the practicality of what it means. Basically, when either chamber of Congress is controlled by the opposing party, the president’s recess power is curtailed:

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.

Obama had said when appointing the three NLRB members that Senate Republicans sought to stop the board from functioning. The administration argued the “pro-forma” sessions held by the Senate every three days were only a sham designed to keep him from filling the posts.

More to come…

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