Obama's Recess Appointment Power Grab Backfires And Hands Conservatives A Victory


This is big for a lot of reasons.

Politically, it’s a major setback to President Obama. To pay off his organized labor friends, Obama jammed in some very union-biased appointments to the National Labor Relations Board. Those appointments have now been ruling on cases before the NLRB for more than a year, but if this ruling stands all of those decisions will be subject to lawsuits and reconsideration because some of the board members deciding them were appointed illegally.

In short, this is a huge mess, and it’s Obama’s fault.

What’s more, Obama provoking the legislative branch with these appointments has resulted in a federal appeals court seriously limiting the President’s recess appointments. Obama, and presidents before him, have made plenty of appointments during intra-session recesses. But thanks to Obama granting himself the authority to determine whether or not the Senate is in session, the Supreme Court has now limited the executive’s power for recess appointments to only the formal recesses between congressional sessions.

From the opinion:

The appointment may be made in “the Recess,” but it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in “the Recess.”

It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions.

Oh, and the vacancies to which the president is making appointments have to have taken place during a recess too in order for the President to make a recess appointment:

To avoid government paralysis in those long periods when senators were unable to provide advice and consent, the Framers established the “auxiliary” method of recess appointments. But they put strict limits on this method, requiring that the relevant vacancies happen during “the Recess.” It would have made little sense to extend this “auxiliary” method to any intrasession break, for the “auxiliary” ability to make recess appointments could easily swallow the “general” route of advice and consent. The President could simply wait until the Senate took an intrasession break to make appointments, and thus “advice and consent” would hardly restrain his appointment choices at all.

This is a major setback for executive power, and it puts both Obama and future presidents at the mercy of the Senate for making appointments.

Which, frankly, probably isn’t such a bad thing. This, coupled with the Senate’s filibuster, will ensure that Presidents make appointments more in keeping with the will of the people.

Obama overplayed his hand, and handed the limited government movement a pretty nice victory.