WASHINGTON (CN) - The U.S. Supreme Court on Thursday affirmed a finding that President Barack Obama's recess appointments were unconstitutional. Obama made the appointments to the National Labor Relations Board last year while the Senate was conducting "pro-forma" sessions.
It is understood that legislators will not actually conduct business during a pro forma session, which came into vogue during the administration of George H.W. Bush and has been used since by both parties.
In practice, the Senate is gaveled to order, then immediately adjourned.
With three of five slots on NLRB vacant during a pro forma session in January 2012, Obama appointed Deputy Labor Secretary Sharon Block, labor lawyer Richard Griffin and NLRB counsel Terence Flynn to the board.
Senate Republicans had been blocking consideration of two of these nominations.
The D.C. Circuit last year deemed
the appointments invalid
while looking at the challenge to a labor board finding brought by Noel Canning, a soft drink bottler in the Pacific Northwest.
Affirming that decision Thursday, the essentially unanimous Supreme Court "the president lacked the power to make the recess appointments here at issue."
The recess appointments clause creates an exception to the rule that presidents must obtain Senate approval before appointing federal officers, but the appointments Obama made fail to meet this standard, the court found.
In this case the Senate was convening every three days in pro forma sessions, but the court said that "a Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the president's recess appointment power."
"That is not to say that the president may make recess appointments during any recess that is 'more than three days,'" according to the lead opinion by Justice Stephen Breyer. "The recess appointments clause seeks to permit the executive branch to function smoothly when Congress is unavailable. And though Congress has taken short breaks for almost 200 years, and there have been many thousands of recess appointments in that time, we have not found a single example of a recess appointment made during an intra-session recess that was shorter than 10 days. Nor has the solicitor general. Indeed, the Office of Legal Counsel once informally advised against making a recess appointment during a 6-day intra-session recess. The lack of examples suggests that the recess appointment power is not needed in that context. (The length of a recess is 'ordinarily calculated by counting the calendar days running from the day after the recess begins and including the day the recess ends.')"
Though Obama and the solicitor general argued that the pro forma sessions should be treated like periods of recess, the court found such arguments unavailing.
"We hold that, for purposes of the recess appointments clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business," Breyer wrote. "The Senate met that standard here."
The 54-page ruling also clarifies that the phrase Senate recess includes both "an inter-session recess (i.e., a break between formal sessions of Congress)" and "an intra-session recess, such as a summer recess in the midst of a session."
Though "there are a few historical examples of recess appointments made during inter-session recesses shorter than 10 days," Breyer said "these few scattered examples" constitute "anomalies" when considered against 200 years of settled practice.
The recess appointments clause is meant to cover appointments the president makes for "vacancies that may happen during the recess of the Senate," and the court additionally clarified that this phrase applies both "to vacancies that initially occur during a recess" and "to vacancies that initially occur before a recess and continue to exist during the recess."
Historical examples are pervasive in opinion, with Breyer noting that "presidents have made recess appointments since the beginning of the republic."
"Their frequency suggests that the Senate and president have recognized that recess appointments can be both necessary and appropriate in certain circumstances," he added. "We have not previously interpreted the [recess-appointments] clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of government themselves have reached."
Justice Antonin Scalia wrote a 49-page opinion concurring in judgment only, which was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.
"The court's decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future presidents against future Senates," Scalia wrote. "To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority's insistence on deferring to the executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this court's role in controversies involving the separation of powers and the structure of government."
Scalia found "no ground for the majority's deference to the unconstitutional recess appointment practices of the executive branch."
"The real tragedy of today's decision is not simply the abolition of the Constitution's limits on the recess-appointment power and the substitution of a novel framework invented by this court," he added. "It is the damage done to our separation-of-powers jurisprudence more generally. It is not every day that we encounter a proper case or controversy requiring interpretation of the Constitution's structural provisions.'
Scalia said the court's failure here "to affirm the primacy of the Constitution's enduring principles over the politics of the moment" will leave its mark in many ways.
"Sad, but true: The court's embrace of the adverse-possession theory of executive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the presidency beyond its constitutional bounds and undermining respect for the separation of powers," he concluded.