Court Monitor

Supreme Court Held that Obama Violated Constitution

A unanimous Supreme Court held that Obama violated Article Art. II, §2, cl. 3, of the Constitution by making appointments to the National Labor Relations Board (NLRB) without Senate approval, during a brief three-day break in the Senate. Obama claimed that an adjournment of merely three days in the Senate constituted a "recess" which justified Obama sneaking "recess appointments" through without Senate confirmation. All the Justices on the Supreme Court -- even those nominated by Obama -- held against him on this issue in National Labor Relations Board v. Canning.

These appointments to the NLRB landed in court after the NLRB decided a case against Noel Canning, a bottler and distributor of Pepsi products. Noel Canning was before the NLRB on a complaint by the International Brotherhood of Teamsters Union. According to the union, Noel Canning violated the National Labor Relations Act by refusing to be bound by decisions made during negotiations.

After the NLRB decided in favor of the union, Noel Canning appealed to the U.S. Court of Appeals for the D.C. Circuit. This federal court held that the decision by the NLRB was null and void because, not counting the illegal appointments by Obama, there were not enough members present to issue a valid holding. The Supreme Court then affirmed the appellate court ruling and invalidated all three of these appointments made by President Obama in January 2012.

Although the Recess Appointments Clause grants the President power to fill vacancies during a Senate recess, the Supreme Court held that President Obama had overstepped his boundaries. According to the Court, the term "recess" requires something more than merely a three-day break. In an opinion by Justice Breyer and joined by Justice Kennedy and the liberal wing of the Court, it held that a break of less than 10 days is presumptively not a recess that would enable the president to make a recess appointment. All nine Justices agreed that a break of less than four days is certainly not a long-enough recess during which the president can make a recess appointment.

Justice Antonin Scalia wrote a concurring opinion advocating for a narrower interpretation of the Recess Appointments Clause. According to Justice Scalia, the Clause extends only to breaks that occur between congressional sessions. Justice Scalia's view did not carry the support of the majority of the Court. Five Justices, speaking for the Court, ruled that the president could make recess appointments (and thereby avoid Senate approval) for recesses that occur during a session (as in August), and also to fill vacancies that existed prior to the recess. To thwart recess appointments during a summer vacation, the Senate can hold pro forma sessions whereby a Senator from nearby Maryland or Virginia drives into D.C. and opens the Senate floor for only a few minutes, about once a week.

This is a victory for the requirement of "advice and consent" by the Senate for presidential appointments, and a setback for Obama and presidential power.


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