By Lawrence Hurley
WASHINGTON (Reuters) – The U.S. Supreme Court on Thursday delivered a blow to President Barack Obama by cutting back the power of the White House to temporarily fill senior government posts without Senate approval.
In a ruling that will constrain future presidents, the court held on a 9-0 vote that the three appointments Obama made to the U.S. National Labor Relations Board (NLRB) in 2012 were unlawful. The decision limits the ability of presidents to make so-called recess appointments without Senate approval, although the court did not go as far as it could have gone in restricting a president’s powers.
The decision, written by Justice Stephen Breyer, could especially hamper the Obama administration if Republicans were to win control of the Senate in the November elections. They already control the House of Representatives. It also is likely to make it more difficult for the president to make appointments of his choosing during the last two years of his term.
The ruling has little immediate impact because Democrats, who currently control the Senate, pushed through a rule change in November 2013 that made it harder for Republicans to block the president’s nominees.
A Senate deal in July 2013 paved the way for the confirmation of five NLRB members. The board will, however, have to reassess all the decisions that were made when the temporary appointees were in office.
The complicated legal issue boils down to when the Senate is formally in recess. Only then does the president’s recess appointment power kick in. In Thursday’s ruling, the court limited the definition of the recess, therefore reducing the circumstances in which presidents can make recess appointments.
The court said that there is no recess when the Senate is holding so-called pro-forma sessions when no business is being conducted but the Senate is not formally adjourned. But the court did not cut back on the president’s power to make recess appointments in between Senate sessions or recesses during a legislative session.
Although the court was unanimous on the outcome, the court was divided on its legal reasoning. Justice Antonin Scalia wrote a concurring opinion in which he was joined by his conservative colleagues.
The court ruled in a case in which soft drink bottler Noel Canning Corp challenged an NLRB ruling against it. The company argued the ruling was invalid because some of the NLRB board members on the panel that issued it were recess appointees improperly picked by Obama. The case is NLRB v. Noel Canning, U.S. Supreme Court, No. 12-1281.
(Reporting by Lawrence Hurley; Editing by Howard Goller and Will Dunham)