The Supreme Court ruled unanimously on Thursday that President Obama acted illegally in 2012 when he installed three members on the National Labor Relations Board without confirmation by the Senate. Even at the time, those appointments — made during a period in which the Senate was convening every three days for “pro forma” sessions at which no serious business was transacted -- were seen as an abuse of the president’s constitutional power “to fill up all vacancies that may happen during the recess of the Senate.”
Nevertheless, Obama and his successors should welcome this decision because it could have been so much worse. The justices could have endorsed the holding of the U.S. Court of Appeals for the District of Columbia Circuit that presidents may unilaterally appoint officials only between “enumerated sessions” of Congress, a hiatus that occurs only once a year. Or they could have backed the appeals court’s holding that recess appointments could be made only for vacancies that opened up during that recess.
Writing for the majority, Justice Stephen G. Breyer rightly rejected the appeals court’s extreme approach. Concluding that the Constitution should be read in light of “the compromises and working arrangements that the elected branches of government themselves have reached,” Breyer noted that the Senate frequently has declared “intra-session” recesses and that presidents have often made temporary appointments during those gaps, including appointments to fill vacancies that arose earlier. Breyer’s bottom line was that the president may exercise his recess appointment authority during a break in Senate business of “substantial length” (usually 10 days or more) and that the vacancy need not have occurred during the recess.
This editorial first appeared in the Los Angeles Times.
That more pragmatic interpretation is good news for the presidency, but it’s also beneficial for the country.
Admittedly, the recess appointment power is an artifact of an era when travel to Washington was time-consuming and senators often were away from the capital for long periods of time. But even in an era of air travel and instant communication, there will be times when a recess appointment is justified, either because of a sudden vacancy in a crucial office or because the Senate won’t act on a nomination expeditiously. (The latter justification has lost much of its force with the decision by Senate Democrats last year to abolish the filibuster for almost all nominations.)
Recess appointments should be exceptional, but they shouldn’t be impossible. It’s good that a majority of the justices didn’t allow their displeasure with Obama’s overreaching to obscure that fact.