Barry tried to pull another fast one when he appointed three people to the National Labor Relations Board in 2012 while the U.S. Senate was taking a break from regular business. Of course, it only took 2 years to strike it down. In his l-o-n-g list of lawbreaking this is a speeding ticket compared to the IRS, VA, and Benghazi scandals… just to mention a few.
Supremes strike down Obama recess appointments
The Supreme Court ruled Thursday that President Obama overstepped his bounds when he tried to circumvent the Senate and install his nominees to key positions — but the justices left the heart of the executive's recess appointment powers intact.
In a ruling freighted with constitutional implications, the justices said the president must wait for Congress to break for at least three days before he can use his recess powers, and said lawmakers on Capitol Hill generally get to decide what constitutes a recess.
But it was the way the court ruled — deferring to what it said was long-standing practice — that may have the broader implications. Justice Antonin Scalia, in a stinging opinion, said the court had opened the door to clever lawyers finding yet more ways to expand the president's powers beyond what the country's founders intended.
"The real tragedy of today's decision is not simply the abolition of the Constitution's limits on the recess appointment power and the substitution of a novel frame work invented by this court. It is the damage done to our separation-of-powers jurisprudence more generally," Justice Scalia wrote.
The decision was 9-0, with all of the justices agreeing Mr. Obama overstepped by making recess appointments at a time when the Senate was meeting every three days specifically to deny him his recess powers.
But five of the justices, led by Justice Stephen G. Breyer, said the president should still have broad powers when a recess lasts at least 10 days.
Justice Breyer said the Constitution itself was unclear, but said the practice of the last century show both the president and the Senate have come to a general understanding, and Thursday's ruling essentially ratifies that understanding.
"The president has consistently and frequently interpreted the word 'recess' to apply to intra-session recesses, and has acted on that interpretation. The Senate as a body has done nothing to deny the validity of this practice for at least three-quarters of a century. And three-quarters of a century of settled practice is long enough to entitle a practice to 'great weight in a proper interpretation' of the constitutional provision," Justice Breyer wrote.
While the ruling was a loss for Mr. Obama, it is a win for the executive branch more generally. Indeed, it returns the situation to where it was before Mr. Obama took office, when presidents generally waited for breaks of 10 days or more before using their powers, but other than that had few limitations.
Justice Breyer said the Constitution was unclear, so he said he had to look at what the practice has been. He said the executive branch has had a broad interpretation of its powers for nearly two centuries, and even the Senate has embraced that broad interpretation for nearly 100 years.
The key 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."
The problem is that the words "recess" and "session" have several meanings in the Constitution and as used in legislative procedure on Capitol Hill.
Justices were deciding a case stemming from Mr. Obama's efforts in 2012 to name three members to the National Labor Relations Board. He was unable to get quick Senate confirmation so he decided to act alone — even though the Senate was meeting every three days specifically to deny him his recess powers.
Republicans said the recess maneuver was a political stunt. They said two of the nominees Mr. Obama made recess appointments for weren't even sent to the Senate until Dec. 15, and Mr. Obama made his recess appointments just three weeks later — a much shorter period of time than even non-controversial nominees take to wind through the process.
"The administration's tendency to abide only by the laws it likes represents a disturbing and dangerous threat to the rule of law. That's true whether we're talking about recess appointments or Obamacare," said Senate Minority Leader Mitch McConnell, who led fellow Republicans in joining the suit against Mr. Obama. "I hope the Obama Administration will take away the appropriate lessons. Because the Court's decision today is a clear rebuke of that behavior."
But Senate Democrats — who had used the same three-day procedure to deny President George W. Bush his recess powers — embraced Mr. Obama's move, saying the GOP left them no choice.
Thursday's court ruling tinkers with some of the fundamental balances between Congress and the executive branch, though it falls short of the full-scale upheaval that lower courts — and a four-justice minority of the Supreme Court — said should happen.
Now, Congress and the president will have to work out a new normal for recess appointments, and that could involve the executive testing never-used powers to force Congress to adjourn.
In the near term the opinion will have little effect, because Senate Majority Leader Harry Reid — possibly anticipation the court's ruling — last year detonated the "nuclear option." That was a bold parliamentary move to change Senate rules and reduce the number of votes needed to overcome a filibuster on nominees to just a majority vote, rather than the 60 required to end most filibusters.
That means Mr. Obama can get most of his nominees through without having to worry about a GOP filibuster — though it does make the process more tedious.
But if a future president were faced with a Senate held by the opposite party, the justices' ruling would give those senators exceptional leverage in nominations.
In a statement, Mr. Reid said the court's ruling justifies his use of the nuclear option.
"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," he said. "Since the November reform the Senate has been confirming qualified nominees at a steady pace and today's ruling will have no effect on our ability to continue ensuring that qualified nominees receive an up-or-down vote."
(What else would you expect from Reid)
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