Control of the Senate just got more important
by David Atkins
The Supreme Court struck down recess appointments made with less than a 10-day break in Senate business:
The Supreme Court on Thursday dealt a significant blow to executive power, cutting back on the president’s power to issue recess appointments during brief breaks in the Senate’s work.Honestly, recess appointments are antiquated holdover from the days before telecommunications and air travel. Allowing appointments during recess that cannot be accomplished during regular business should probably go the way of the telegraph.
The court ruled unanimously that President Obama had violated the Constitution in 2012 by appointing officials to the National Labor Relations Board during a short break in the Senate’s work when the chamber was convening every three days in short pro forma sessions when no business was conducted. Those breaks were too short, Justice Stephen G. Breyer wrote in a majority opinion joined by the court’s four more liberal members.
Justice Breyer added that recess appointments remain permissible so long as they are made during a break of 10 or more days. But many experts say that if either house of Congress is controlled by the party opposed to the president, lawmakers can effectively block such appointments by requiring pro forma sessions every three days. Each house must get the approval of the other chamber for recesses of more than three days.
Still, Mr. Obama and the presidents who will succeed him avoided a far broader loss, one that could have limited recess appointments to breaks between Congress’s formal annual sessions and even then to vacancies that arose during those breaks. That was the approach embraced by the court’s four more conservative members.
Justice Antonin Scalia issued a caustic statement from the bench. “The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” he said.
That said, an obstructionist Congress will now have an even easier time not only derailing a president's choice and agenda, but of hamstringing entire departments of government by simply not allowing appointments to be made at all. Which means that control of Congress is now an even bigger deal than it was before.