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Supreme Court curtails president’s ‘recess’ appointments

WASHINGTON – The Supreme Court today narrowed the president’s power to steer clear of Congress by making “recess appointments” to fill key federal positions.

In a ruling that will force presidents to seek Senate approval for more key appointments, the nine justices agreed that President Obama had stretched his power to make appointments during congressional recesses beyond what the Constitution allows.

The case, NLRB v. Canning, involves three appointments Obama made to the National Labor Relations Board – including that of Buffalo-born lawyer Richard F. Griffin Jr. – during a three-day Senate break.

That’s too short a period of time to trigger a power that, historically, presidents have used in to make emergency appointments when the Senate is out of session for a longer period of time, the court ruled.

“We conclude that the phrase ‘the recess’ includes any recess of 10 or more days,” based on the historical record of how presidents have used the recess power in the past, Justice Stephen Breyer said from the bench.

Five of the nine justices joined Breyer’s opinion. In addition, the court’s four conservatives agreed with Breyer’s judgment that the NLRB appointments were improper, but offered a second opinion that would have curtailed the president’s appointment powers even further.

Today’s opinion will not determine Griffin’s fate, because Obama withdrew his nomination to a permanent slot on the board last year as part of a Senate deal to let several other nominations move forward.

But in addition to narrowing a key presidential power, today’s ruling also potentially calls into question decisions the NLRB made when Obama’s recess appointments were serving on the panel -- including a key ruling on Internet free speech in the workplace that has its roots in a dispute at Hispanics United of Buffalo.

At issue in the case was the Constitution’s recess appointments clause, which states: “The president shall have power to fill up all vacancies that may happen during the recess of the Senate.”

Presidents since George Washington have used that clause to fill vacancies during the Senate’s absence. The practice – which recent presidents have stretched to be used even during the shortest of congressional breaks – has not faced a major court challenge until now.

Historically, Breyer wrote, presidents have used the recess appointment power during longer congressional recesses. To permit the president to make such appointments doing short, routine breaks would shift the balance of the appointment power, he wrote.

“If the clause gives the president the power to ‘fill up all vacancies’ that occur before, and continue to exist during the Senate’s recess, a president might not submit any nominations to the Senate,” Breyer wrote. “He might simply wait for a recess and then provide all potential nominees with recess appointments. He might thereby routinely avoid the constitutional need to obtain the Senate’s ‘advice and consent’.”

Even though all nine justices agreed with Breyer’s judgment that Obama’s NLRB appointments were improper, today’s decision is likely to be a controversial one, largely because the court’s conservatives wanted the recess power curtailed even further.

In his concurring opinion, Justice Antonin Scalia wrote that the recess appointment power should hold only during the December-January breaks between sessions of Congress.

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