- The Washington Times - Thursday, June 26, 2014

The Supreme Court ruled Thursday that President Obama overstepped his bounds when he tried to circumvent the Senate and install his nominees to key positions — but the justices left the heart of the executive branch’s recess appointment powers intact.

In a ruling freighted with constitutional implications, the justices said the president must wait for Congress to break for at least 10 days before he can use his recess powers, and said lawmakers on Capitol Hill generally get to decide what constitutes a recess.

The 9-0 decision, written by Justice Stephen G. Breyer, amounts to a court-issued spanking of Mr. Obama, and it returns the playing field between presidents and Congress back to where it was before he tried his 2012 end run.

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But it was the way Justice Breyer reached his decision — saying decades of clear practice trump the written words of the Constitution — that may have the broader long-term implications. Justice Antonin Scalia, in a stinging concurring opinion, said the court had opened the door to clever lawyers finding yet more ways to expand the president’s powers beyond what the country’s founders intended.

“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 frame-work invented by this court. It is the damage done to our separation of powers jurisprudence more generally,” Justice Scalia wrote.

Justices were deciding a case stemming from Mr. Obama’s efforts in 2012 to name three members to the National Labor Relations Board. He was unable to get quick Senate confirmation, so he decided to act alone — even though the Senate was meeting every three days in pro forma sessions specifically to deny him his recess powers.

The key clause of the Constitution reads: “The President shall have Power 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.”

The problem is that the words “recess” and “session” have several meanings in the Constitution and as used in legislative procedure on Capitol Hill.

Mr. Obama had argued that pro forma sessions, wherein the chamber was almost completely empty, little business was done, and the sessions lasted minutes, if not seconds, shouldn’t count. He said the key test should be whether the Senate was available to do business.

But Republican senators argued, and the justices agreed, that even during a pro forma session, legislation can be passed and messages received, which means it was available to act — it just chose not to.

“When the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the clause,” Justice Breyer wrote.

A lower appeals court had gone even further, finding that the recess powers were only restricted to the end-of-year break, and that both the vacancy and the appointment must happen during that time.

Justice Breyer said the Constitution itself was unclear and that the Supreme Court had never ruled on the question, so it made sense to defer to the general understanding the other two branches had reached over the last century. Thursday’s ruling essentially writes that compromise — that a recess must last 10 days — into constitutional law.

“We have not previously interpreted the 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 Breyer wrote.

The White House brushed off the rebuke, with press secretary Josh Earnest saying that while they were “deeply disappointed,” they believe the court left them plenty of room to maneuver on other areas of executive authority.

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