WASHINGTON (Reuters) - The U.S. Supreme
Court reined in presidential power on Thursday, ruling that President
Barack Obama went too far when he filled senior government posts without
seeking U.S. Senate approval, but the justices stopped short of a more
sweeping decision limiting executive authority.
In a ruling that will constrain future presidents, the court held
on a 9-0 vote that the three appointments Obama made to the U.S.
National Labor Relations Board (NLRB) in 2012 were unlawful. The
decision limits the ability of presidents to make so-called recess
appointments without Senate approval.
Although the court was unanimous on the outcome, the nine justices
were divided 5-4 on the legal reasoning. Justice Antonin Scalia
wrote a fiery opinion, joined by his conservative colleagues, saying
he would have gone further in limiting the recess appointment power.
Justice Anthony Kennedy, the court's regular swing vote, joined
liberal colleagues in the majority.
The ruling comes at a time of partisan political fighting in
Congress between Republicans and Obama.
Republicans have fought virtually every major Obama initiative since
he took office in 2009 and they have accused the Democratic
president of overstepping his constitutional authority.
The Supreme Court upheld the president's power to make recess
appointments in between Senate sessions or recesses during a
legislative session. Its narrow ruling said there is no recess when
the Senate holds so-called pro forma sessions during which no
business is conducted but the Senate is not formally adjourned.
"The only remaining practical use for the recess appointment power
is the ignoble one of enabling presidents to circumvent the Senate's
role in the appointment process, which is precisely what happened
here," Scalia read from a court statement.
Thursday's majority decision, written by Justice Stephen Breyer,
could especially hamper the Obama administration if Republicans win
control of the Senate in Nov. 4 elections. They already control the
House of Representatives.
White House spokesman Josh Earnest said Obama was "deeply
disappointed" by the ruling but noted that the decision "does
preserve some important elements of the president’s executive
authority, and he will not hesitate to use it."
The ruling has little immediate impact because Democrats, who
currently control the Senate, pushed through a rule change in
November 2013 that made it harder for Republicans to block the
Senate Majority Leader Harry Reid, a Democrat from Nevada, said the
ruling “underscores the importance” of the Senate rule change last
“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,” he said.
Kentucky Republican Mitch McConnell, the Senate minority leader,
said: "All Americans should be grateful for the court's rebuke of
the administration." Republican senators had filed papers urging the
court to rule against the administration.
Senators have the ability to delay or block altogether a president’s
nominees, meaning they might never be confirmed.
Presidents of both parties have regularly used recess appointments.
For example, Obama's predecessor, Republican George W. Bush, used
this power to appoint John Bolton - a hero to many conservatives -
as his U.N. ambassador in the face of staunch Democratic opposition
in the Senate.
'SERIOUS INSTITUTIONAL FRICTION'
Breyer wrote that the recess appointment power is only triggered
once the Senate has been in recess for 10 days. He rejected the
Obama administration's argument that the appointment power needed to
be expansive to overcome political differences between branches of
government that prevent nominees from being confirmed.
The recess appointments clause "is not designed to overcome serious
institutional friction," Breyer wrote. The majority was hesitant to
issue a broader ruling because it would have brought into question
hundreds of appointments made over the years, Breyer said.
from the bench, Scalia was insistent that the court should have gone
further, saying that presidents have over the years treated the need
to have nominees confirmed by the Senate as an "unreasonable
Scalia would have favored ruling that the president could only make
recess appointments in formal recesses between Senate sessions when
vacancies arose during that recess.
Scalia said the majority "sweeps away the most important limitations
the Constitution places on the president's recess appointment
The court ruled in a case in which soft drink bottler Noel Canning
Corp challenged an NLRB ruling against it. The company argued the
ruling was invalid because some of the NLRB board members on the
panel that issued it were recess appointees improperly picked by
The U.S. Chamber of Commerce and other business interests has
intervened in the Yakima, Washington-based company's case.
Obama used his recess appointment power to name three members to the
five-member NLRB in January 2012. The appointments are valid for up
to two years.
Labor lawyers said Thursday's ruling raised questions about the
validity of more than 1,000 NLRB decisions made with the recess
appointees serving on the board, but predicted that any cases the
board reconsiders will likely end with similar outcomes.
A Senate deal in July 2013 paved the way for the confirmation of
five NLRB members, which limits the practical impact of the
decision. The board will, however, have to reassess all the
decisions that were made when the temporary appointees were in
The Obama administration said it was following the long-established
interpretation of the recess appointments clause of the U.S.
Constitution, dating back to President George Washington.
Noel Canning and its backers contended that Obama ignored the
original intent of the Constitution's drafters, who included the
recess appointments clause to ensure the government could continue
to function when the Senate was in recess for months at a time and
senators would travel to Washington on horseback.
The case is NLRB v. Noel Canning, U.S. Supreme Court, No. 12-1281.
(Reporting by Lawrence Hurley; Editing by Howard Goller, Will Dunham
and Grant McCool)