SCOTUS’ meaningless ruling: Why its limit on recess appointment powers doesn’t really matter anymore

SCOTUS’ meaningless ruling: Why its limit on recess appointment powers doesn’t really matter anymore

The Court ruled that President Obama's recess appointments were illegal. Here's why they're too late

JIM NEWELL

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 — January 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.

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http://www.salon.com/2014/06/26/scotus_meaningless_ruling_why_its_limit_on_recess_appointment_powers_doesnt_really_matter_anymore/