The U.S. Constitution requires the president to receive the "advice and consent" of the Senate when filling vacancies in high government offices. Yet in January 2012 President Barack Obama bypassed that requirement and placed three new members on the National Labor Relations Board without first receiving senatorial confirmation. To justify this unilateral exercise of executive power, Obama cited the Constitution's Recess Appointments Clause, which permits the president to make temporary appointments 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." But there was a problem: The Senate was not in recess at that time. In fact, Senate Republicans were then holding pro forma sessions for the precise purpose of denying Obama a legitimate opportunity to make any and all recess appointments. Obama's actions therefore violated both the text of the Constitution and the separation of powers between the executive and legislative branches of the federal government.
Today, by a vote of 9-0, the U.S. Supreme Court struck down Obama's unconstitutional overreach in National Labor Relations Board v. Noel Canning. "In our view," declared the majority opinion of Justice Stephen Breyer, "the pro forma sessions count as sessions, not as periods of recess." Therefore, "We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is."
This ruling represents a resounding and well-deserved defeat for the Obama administration, which failed to garner even a single vote for its expansive theory of executive power. Indeed, in terms of recess appointments, President Obama has revealed a tendency towards unilateral action that exceeds even that of his predecessor George W. Bush, who was no slouch in the executive power department. Yet unlike Obama, Bush adhered to the independence of Congress and stopped making purported recess appointments in 2007 when Senate Democrats first introduced the tactic of holding pro forma sessions to thwart his nominees. As The New York Times reported at the time, "Senate Democrats repeated the move during breaks for the rest of Mr. Bush's presidency, and Mr. Bush did not try to make any further recess appointments."
Today, Obama's eagerness to expand executive authority beyond Bush-era levels met with overwhelming rejection at the hands of a unanimous Supreme Court. "We conclude that the President lacked the power to make the recess appointments here at issue," declared Justice Breyer. Obama's "recess" appointments to the National Labor Relations Board are therefore invalid and unconstitutional.
The opinion in National Labor Relations Board v. Noel Canning is available here.