Justices restrain presidential power

  • Article by: ADAM LIPTAK , New York Times
  • Updated: June 26, 2014 - 9:49 PM

Court rebuked Obama for his recess appointments.

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People left the Supreme Court on Thursday after its rulings on presidential power and abortion clinic protests.

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– The Supreme Court issued a unanimous rebuke to President Obama on Thursday, saying he had overreached in issuing recess appointments during brief breaks in the Senate’s work.

Obama violated the Constitution in 2012, the justices said, by appointing officials to the National Labor Relations Board during a break in the Senate’s work when the chamber was convening every three days in short pro forma sessions in which no business was conducted. Those breaks were too short, Justice Stephen Breyer wrote in a majority opinion joined by the court’s four other more liberal members.

At the same time, the court largely reinstated an uneasy, centuries-long accommodation between the executive branch and the Senate, in which recess appointments were allowed during more substantial breaks. Breyer said such appointments generally remained permissible if they were made during breaks of 10 or more days.

Momentous ruling

Although there may be few immediate practical consequences of the ruling, given the recent overhaul of the Senate’s filibuster rules, the decision was nonetheless momentous, involving a constitutional adjudication of the balance of power between the president and the Senate.

Just how to strike that balance was the subject of a heated dispute between the court’s liberal members and its more conservative ones.

The practical effect of the ruling over time “remains to be seen,” Justice Antonin Scalia said in a concurrence. Many experts say that if either house of Congress is controlled by the party opposed to the president, lawmakers can effectively block recess appointments by requiring pro forma sessions every three days. The Constitution says that each house must get the approval of the other chamber to adjourn for more than three days.

But Scalia was skeptical, noting that the president had the constitutional power to set adjournments when the chambers disagreed.

What was certain, he said, was that the court had endorsed a vast expansion of executive power. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito Jr. joined the concurrence, which was caustic.

“The court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need,” Scalia wrote, “into a weapon to be wielded by future presidents against future Senates.”

Some facets rejected

The decision affirmed a broad ruling last year by a federal appeals court in Washington that had called into question the constitutionality of many recess appointments by presidents of both parties. But the Supreme Court majority rejected the appeals court’s reading of the constitutional text, relying instead on historical practices.

Josh Earnest, the White House press secretary, expressed dismay and satisfaction in equal measure. “We’re of course deeply disappointed in today’s decision,” he said.

But Earnest added that the White House was “pleased that the court recognized the president’s executive authority as exercised by presidents going all the way back to George Washington.”

Miguel Estrada, a lawyer for Sen. Mitch McConnell of Kentucky, the body’s Republican leader, said the decision was a victory for the Senate and the separation of powers. “The Supreme Court reaffirmed the Senate’s power to prescribe its own rules, including the right to determine for itself when it is in session, and rejected the president’s completely unprecedented assertion of unilateral appointment power,” he said.

The Constitution’s recess-appointments clause says, “The president shall have power to fill up all vacancies that may happen during the recess of the Senate.”

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