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Supreme Court narrows president’s recess appointment power

WASHINGTON – The Supreme Court slapped President Obama’s wrist Thursday for pulling an end-around to get his favorites – including a lawyer from Buffalo – past the Senate and onto the National Labor Relations Board.

But the decision isn’t the dramatic curtailment of the presidential “recess appointment” power that it could have been.

Instead, it just means a Senate recess will have to be at least 10 days long before the president can start filling key administrative positions without the Senate’s “advice and consent.”

And even though the ruling throws into question upwards of 200 NLRB decisions – including a landmark case out of Buffalo that gives everyone the right to complain about work on Facebook – legal experts expect those decisions to be reaffirmed by the current labor board.

In other words, what some expected to be the landmark ruling in NLRB v. Canning is more likely to have to have a more limited impact.

The court did not side with its four conservatives, who, in a dissent by Justice Antonin Scalia, said they would have restricted the recess appointment power to the end-of-the-year breaks between congressional sessions.

Instead, based on how presidents have used the recess appointment power throughout history, “we conclude that the phrase ‘the recess’ includes any recess of 10 or more days,” Justice Stephen Breyer said from the bench.

The difference between what Scalia wanted and what the court did is vast.

“Justice Scalia would render illegitimate thousands of recess appointments reaching all the way back to the founding era,” Breyer wrote in an opinion joined by Justices Anthony Kennedy, Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan.

In contrast, “the practical effect of today’s decision is to return the rules governing recess appointments to what just about everyone believed them to be before President Obama adopted a significantly broader view of that authority in January 2012,” Andy Pincus, a longtime Supreme Court litigator in Washington, told the Associated Press.

The case stems from Obama’s appointment of three members to the NLRB – including Buffalo-born lawyer Richard F. Griffin Jr. – during a three-day Senate break in early 2012.

Thursday’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.

What’s more, the significance of the pending ruling faded last November when Senate Majority Leader Harry Reid opted for the “nuclear option” to begin clearing most Obama appointees with a simple majority rather than the 60 votes that had long been required.

“Without that reform and with today’s ruling, a small but vocal minority would have more power than ever to block qualified nominees from getting a simple up-or-down vote on the floor,” said Reid, D-Nev.

In addition to narrowing a key presidential power, Thursday’s ruling also calls into question NLRB decisions made by Obama’s recess appointments – including a key ruling on Internet free speech in the workplace that has its roots in a dispute at Hispanics United of Buffalo.

“Employees have a protected right to discuss matters affecting their employment amongst themselves,” the NLRB ruled in that case.

The Supreme Court never addressed what happens to that decision and the others the improperly appointed NLRB made, but labor leaders expect the new board – whose members have been confirmed by the Senate – will reaffirm the Hispanics United decision and all those others.

“We are confident the NLRB will handle the pending cases impacted ... efficiently and expeditiously,” said AFL-CIO President Richard Trumka.

Despite its limited nature, Republicans were thrilled with the Supreme Court decision.

“The court’s ruling today reinforces the critical checks and balances inherent in our government and curtails President Obama’s rampant abuse of power, which has become a central theme of his administration,” said Rep. Chris Collins, R-Clarence.