The justices ruled unanimously that Obama exceeded his constitutional authority when he appointed three members of the National Labor Relations Board in January 2012. They said in their first-ever consideration of the Constitution’s recess appointments clause that Congress gets to decide when it is in recess and that there was no recess when Obama acted. They also ruled that the Senate must be out of session for at least ten days for the president to make a recess appointment. Four justices would have gone further in limiting the appointment power.
“The Recess Appointments Clause is not designed to overcome serious institutional friction. It simply provides a subsidiary method for appointing officials when the Senate is away during a recess,” Justice Stephen Breyer wrote for the court. “Here, as in other contexts, friction between the branches is an inevitable consequence of our constitutional structure.”
Three different federal appeals court ruled the “recess appointments” President Obama made two years ago to the National Labor Relations Board were an abuse of power, that he acted when the Senate was not actually in a recess and and the board has not had quorum to operate.
Four justices, led by Justice Antonin Scalia, wrote a separate opinion arguing the court should have stuck with the end-of-year recess definition.
Justice Scalia warned that the majority opinion will be abused by clever lawyers to expand executive power even beyond its already broad limits today.
Justice Scalia also mocked Justice Breyer for relying on practice rather than on the Constitution itself, which Justice Scalia said was clear.
The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments. Henceforth, the Senate can avoid triggering the president’s now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is under stood that no business will be conducted,” Justice Scalia wrote.
So in the future those 3-day pro forma senate sessions are good enough to count as the Senate being in session.
The ruling follows: