Court Has Tying Fetish

In a unanimous decision, the Supreme Court on Thursday limited the president's power to make recess appointments for vacancies in the executive branch. 

The case, National Labor Relations Board v. Noel Canning et al., specifically related to three appointments Obama made in 2012 to the NLRB while the Senate was in pro forma sessions, convening every three days. 

As the Court sees it, for the Senate to truly be in recess, it would have to be out for at least 10 days.

The majority opinion in the case was written by Justice Stephen Breyer, which was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. 

A concurring opinion written by Antonin Scalia was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.

The Court's summary states (emphasis ours) "The Recess Appointments Clause empowers the President to fill existing vacancy during any recess—intra-session or inter-session—of sufficient length."

But the question here is whether the Senate was actually in recess. "A Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President's recess-appointment power."

As the Court holds, the pro forma sessions like the one Obama used to appoint the NLRB members are full sessions, as long as that's what the Senate says. Or, as the Court puts it, "the Senate is in session when it says that it is."

"We conclude that we cannot ignore these pro forma sessions," Breyer wrote.

As Tom Goldstein writes at SCOTUSblog, the decision significantly limits presidential power. While the president can still make recess appointments without Senate confirmation when the Senate says it's in recess, the House or Senate "can take the Senate out of recess and force it to hold a 'pro forma session' that will block any recess appointment." Which means, the party in power of the House or Senate will be able to block recess appointments easily.