

Resolving a long-standing battle between the two other branches of government, the justices declared invalid key recess appointments made by Obama in 2012 when the Senate was holding only pro-forma sessions every three days.

But the majority opinion by Justice Stephen Breyer did not go further and limit recess appointments to remote periods and circumstances, as a federal appeals court had ruled last year. It said simply that three days is not long enough to qualify as a recess; 10 days, it said, would qualify.

Because the Senate was in session during its pro forma sessions, the president made the recess appointments before us during a break too short to count as recess, said Breyer, the lone justice to have worked for the Senate. For that reason, the appointments are invalid. He was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Press secretary Josh Earnest said the White House was deeply disappointed by the ruling but pleased by the court's recognition of executive authority in general. He said Obama remains committed to using every element of his executive authority to make progress on behalf of middle class families.

While the ruling against Obama's appointments was unanimous, four conservative justices would have limited future presidents far more broadly and implicated thousands of previous appointments dating back to George Washington. That would have represented a more sweeping victory for Congress over the White House.

Still, the court's decision effectively tilts the balance of power toward Congress, because either the Senate or House of Representatives can refuse to go into recess. Only when both houses are controlled by the president's party can he push through his nominees and in those circumstances, the recess appointments power isn't needed.


Cast in the hyper-partisan environment of 2014, the battle pit Obama's brazen appointments against Senate Republicans' unprecedented efforts to block or stall his nominations. It lost its immediate relevance last fall when Democrats changed the Senate's rules to deprive the Republican minority of its ability to block nominations with just 41 of 100 votes.

More than anything, today's Supreme Court ruling underscores the importance of the rules reform Senate Democrats enacted last November, said Majority Leader Harry Reid, D-Nev.

If Republicans take control of the Senate in November, however and anytime in the future that the White House and Senate are controlled by opposite parties the high court's ruling will prevent presidents from sidestepping the Constitution's confirmation process during similar three-day recesses.

Senate Republican leader Mitch McConnell hailed the ruling. The president made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even bothering to wait for its advice and consent, he said. A unanimous Supreme Court has rejected this brazen power-grab.

While agreeing with the result in terms of the National Labor Relations Board appointments, Justice Antonin Scalia wrote for the remaining four justices that a president's recess power should be limited far more than the court allowed. If an appointment must be made, he said, the Senate always can be called back into session.

The majority practically bends over backward to ensure that recess appointments will remain a powerful weapon in the president's arsenal, he said. That is unfortunate, because the recess appointment power is an anachronism. He said the new rules calling for 10-day recesses have no basis whatsoever in the Constitution; they are just made up.

But Breyer's majority ruling said presidents must retain some leeway to go around the Senate. He said the historical practices engaged in by the executive and legislative branches -- a series of compromises and working arrangements going back centuries -- must be given significant weight.

The Constitution empowers the president to fill any existing vacancy during any recess -- intra-session or inter-session -- of sufficient length, he said. Justice Scalia would render illegitimate thousands of recess appointments reaching all the way back to the founding era.

Peter Shane, an expert on separations of powers law at Ohio State University's Moritz College of Law, said the ruling is about the best Obama and future presidents could have hoped for. A lot of deference is owed to Senate rules, he said. The court majority gave proper weight to a history of the elected branches working it out among themselves.


The recess appointments clause of the Constitution reads: The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

After being frustrated by three years of Republican opposition to some nominees, Obama opened 2012 by naming three members to the quorum-starved National Labor Relations Board while the Senate was gaveling in and out every 72 hours, usually without conducting any business.


Enter Pepsi bottler Noel Canning of Yakima, Wash., which contested a 2012 decision of the labor board dominated by Obama's recess appointees. It won more than it bargained for at the U.S. Court of Appeals for the District of Columbia Circuit, which ruled that such appointments are constitutional only when vacancies occur and are filled during the annual break between congressional sessions.

That's a more literal reading of the Constitution, one that Scalia endorsed in his opinion, joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Had their view prevailed, future presidents would have been far more limited in making recess appointments.

Still, the high court's ruling means that hundreds of decisions made by the labor board while dominated by Obama's recess appointees will be called into question. The new five-member board, including four members since approved by the Senate, may have to revisit those cases.


To date, Obama has made only 32 recess appointments. But in this case, he did so to get around the Senate's intransigence rather than its absence something both liberal and conservative justices frowned upon during oral arguments in January.

The recess appointments clause is not designed to overcome serious institutional friction, Breyer said. Friction between the branches is an inevitable consequence of our constitutional structure.

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