Supreme Court BuildingOn the heels of the Supreme Court’s punch to the first phase of Barack Obama’s global warming agenda, comes another hard hitting ruling in which the court struck down Obama’s recess appointments, declaring that a president may only use their appointment powers during a recess that lasts ten days or more.

The Supreme Court took on the issue of the Constitutionality of Obama’s recess appointments last year. Today, a unanimous ruling by the justices, 9-0, determined that Obama’s appointments to the National Labor Relations Board were unconstitutional.

According to the Constitution, Article II, Section 2, Clause 3:

“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 Washington Times reports:

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.

While the ruling on the appointments was unanimous, by a 5-4 vote, “the court refused to virtually eliminate the president’s power to fill vacancies when the Senate wasn’t transacting business, as a lower court had done.”

The Wall Street Journal reports:

The ruling puts in question hundreds of decisions the labor board issued during the time the recess appointees were seated, including a decision that protected workers from being fired for complaining about working conditions on sites like Facebook and a decision that gave unions greater rights in employee-discipline cases.

The board issued 436 decisions in contested cases between Jan. 31, 2012, and July 16, 2013, an NLRB spokesman said. Two of the recess appointees—Democrats Richard Griffin and Sharon Block—were on the board during that 18-month period, while the other—Republican Terence Flynn—stepped down in the summer of 2012.


The majority opinion, written by Justice Stephen Breyer and sided with by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, read “This court must hesitate to upset the compromises and working arrangements that over time the elected branches of government have reached.”

He said that the presidential power of appointments was to “ensure the continued functioning of the federal government when the Senate is away. The Senate is equally away during both an intersession and an intrasession recess.”

“Ultimately, having examined the history, we find that to count as a ‘recess,’ a break—whether intersession or intrasession—must normally last for 10 days or more,” he concluded. “That is a length sufficient to create a potential need for a presidential appointment.”

According to Breyer, “The Senate said it was in session.”

“We are reluctant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long,” Breyer wrote.

The minority, which included Justices Antonin Scalia, John Roberts, Clarence Thomas and Samuel Alito believe the majority interpreted the president’s power too broadly.

“The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” Justice Scalia wrote. He believes that the ruling would “have the effect of aggrandizing the presidency beyond its constitutional bounds,… well beyond the dispute at hand.”

“The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” Scalia added.

“A self-aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding,” Scalia continued.

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Scalia then asked, “If the Constitution’s text empowers the President to make appointments during any break in the Senate’s proceedings, by what right does the majority subject the President’s exercise of that power to vague, court-crafted limitations with no textual basis?”

“An interpretation that calls for this kind of judicial adventurism cannot be correct,” he wrote.

Breyer disagreed, writing, “Justice Scalia would render illegitimate thousands of recess appointments reaching all the way back to the founding era. More than that: Calling the Clause an ‘anachronism,’ he would basically read it out of the Constitution. He performs this act of judicial excision in the name of liberty. We fail to see how excising the Recess Appointments Clause preserves freedom.”

“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.

John Bresnahan at Politico elaborates on Scalia’s “colorful digressions aimed at pointing up what he sees as logical flaws in the majority’s reasoning.” He writes:

After challenging Breyer’s interpretation of the Senate’s historical view on what constitutes a legislative break sufficient to trigger the president’s recess appointment power, Scalia schooled his colleague for succumbing to the dreaded “fallacy of the inverse.”

“If someone avers that a catfish is a cat, and I respond by pointing out that a catfish lives in water and does not have four legs, I have not endorsed the proposition that every land-dwelling quadruped is a cat,” the conservative justice declared.

However, one must keep in mind that though the court has determined that Obama actually broke the law (the Constitution), there won’t be any serious repercussions for him. In fact, he doesn’t have to worry about getting any appointments through the Senate now since Senate Majority leader Harry Reid (D-NV) decided to use the nuclear option last year, which allows for a simple majority vote to confirm nominees. Consequently, Reid issued a statement to that effect:

“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. 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.”

Tim Brown is the Editor of Freedom Outpost.