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This morning the Supreme Court ruled to limit the president’s recess appointment powers — but not eliminate them. It upholds a lower court ruling that several recess appointments President Obama made in early 2012 to the National Labor Relations Board were illegal. It does not, however, conclude that the recess appointment power is a thing of the past and should mostly be discarded, as the lower court previously had.
The good thing for the Obama administration, at least, is that in practical terms, today’s ruling no longer really matters. That’s because the Senate majority has since eliminated the filibuster on executive and judicial appointments that was the cause of this whole mess to begin with.
The ruling — in which the court considered the recess appointments clause for the “first time” — held that “The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess—intra-session or intersession—of sufficient length.” It defines “intra-session” recess as “breaks in the midst of a formal session” and “intersession” as “breaks between formal sessions of the Senate.” So the president, according to the majority opinion, still holds the power to make recess appointments to vacancies when the Senate is either taking a break between sessions or taking time off during a session.
Where the court found issue with President Obama’s 2012 appointments was the lack of “sufficient length,” (three days, in this case) of the intra-session recess in which the appointments were made. The period in question — Jan. 3-6, 2012 — came between so-called pro forma sessions of the Senate. Most senators were away on holiday break, but someone stuck around to gavel the Senate into session. The Obama administration argued that those pro forma sessions didn’t really count as the Senate being in session, since they effectively only existed to prevent Obama from making recess appointments. The majority opinion, written by Justice Breyer, doesn’t buy that argument. “The Senate is in session when it says that it is,” Breyer writes, “provided that, under its own rules, it retains the capacity to transact Senate business.” And so:
Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.
Okey-doke. Three days, not enough, looks like the president is trying to bypass the Senate’s advise and consent role, got it.
What the Obama administration was trying to do, more broadly, was force a nasty new political reality to a conclusion. Senate Republicans were filibustering nominees, and gaveling in pro forma sessions to prevent recess appointments of them, not because they had specific problems with those nominees. It was because they didn’t, and still don’t, believe in the very function of the NLRB, and would rather leave vacancies there vacant indefinitely. This was no way for a government to be run, so the Obama administration deemed that those pro forma sessions didn’t really count as the Senate being in session; Republicans were just acting in bad faith to stymie President Obama and Senate Democrats. The courts officially disagree.
This whole legal battle, though, could have been avoided had Senate Democrats done what they eventually did to solve the problem, but earlier: eliminate the filibuster on judicial and executive branch nominees, and then not worry about what does and doesn’t count as a recess appointment.
After the D.C. Circuit Court of Appeals ruled last year that the NLRB appointments were illegal, President Obama renominated appointees to fill those slots and submitted them to the Senate. What happened? Senate Republicans filibustered them forever, of course. Eventually, Senate Majority Leader Harry Reid got fed up and triggered the “nuclear option”: a Senate rules change that would require only 50 votes, instead of 60, to invoke cloture on executive and judicial nominations. The NLRB nominees, and several others that had been held up, made their way through.
Had Reid gone ahead and invoked the “nuclear option” earlier, President Obama never would have had to make those legally dicey recess appointments, and this issue never would’ve made it to the courts. But, hey, he eventually did. So today’s ruling, in practical terms, isn’t that big of a blow to the presidency.
Jim Newell covers politics and media for Salon.More Jim Newell.