U.S. News


Supreme Court Weighs Obama's Recess Appointment Power

The issue at stake is the constitutionality of President Obama’s recess appointments, and who gets to decide when the Senate is in recess.
Posted at 4:32 PM, Jan 13, 2014

​It’s arguably one of President Obama’s biggest powers in office. (Via The White House

And depending on how the U.S. Supreme Court rules, he could see some restrictions on it. (Via Wikimedia Commons / Kjetil Ree)  

The issue at stake is the constitutionality of Obama's recess appointments. The question before the high court is, who decides when the Senate is in recess?

You see, two years ago he appointed three officials to the National Labor Relations Board, while most of the Senate was away on Christmas holiday — though some were still meeting in informal sessions. (Via The White House)

He justified those appointments with a clause in the U.S. constitution that gives the President the power to fill "all vacancies that may happen during the recess of the Senate." (Via U.S. National Archives

In other words, any time the Senate is unavailable to vote on a nominee, the president should be able to make appointments — or at least that's the how the White House sees it. 

But that didn't sit well with soft-drink bottle maker Noel Canning, which is facing restrictions from the NLRB. It filed suit, taking the position that because the Senate wasn't in recess, Obama's appointments were not legal, and therefore none of the decisions the NLRB reached were either. (Via Noel Corporation, Euronews)

Senate Republicans agreed.

"The constitution does not empower the president to make this decision." (Via Office of Sen. Roy Blunt)

"The Senate was never really consulted." (Via Office of Sen. John Barroso ) 

"If the president could define recess, he could make appointments during every lunch break." (Via Office of Sen. Orrin Hatch)

They argue the president can only make recess appointments between formal sessions of the Senate, and it's up to them, not the president to define when that is.

And the D.C. Court of Appeals agreed, ruling the president's appointments unconstitutional. (Via The Washington Times

Which brings us to today, with the fate of the president's recess appointment power in the hands of the Supreme Court — the implications of which could be far reaching.

The New York Timeseditorial board argues a narrow interpretation could lead to a slippery slope, writing "thousands of other such appointments made over the years by other presidents would be called into question, not to mention more than 1,300 rulings made by the 'invalid' labor board."

Of course, not everyone sees it that way. A Forbes contributor calls Obama’s recess appointments dangerous and unconstitutional. "To understand just how dangerous, the President's supporters need only to imagine this awesome power in the hands the other party."

But however the court rules, the implications will be far less sweeping than they could have been had Senate Democrats not voted to allow presidential picks to advance with just a simple majority — rather than the old 60-vote threshold. (Via YouTube /SenateDemocrats)

Basically, as Amy Howe at SCOTUSBlog notes, that move decreased the chances President Obama might have to use recess appointments anyway.

Still, according to the Congressional Research Service,  more than 300 recess appointments since President Reagan could be found void if the ruling is upheld by the Supreme Court. A decision in the case is expected by next June.