In another unanimous decision Thursday, the Supreme Court has ruled that President Obama overstepped his authority in making three appointments to the National Labor Relations Board in January 2012. The appointments were ruled invalid because he never sought “advice and consent” from the Senate.
The president is usually required to consult the Senate before appointing high-ranking federal officials. President Obama used the Recess Appointments Clause of the Constitution to appoint the individuals. The Clause states: 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. This clause was more meaningful in earlier days when recesses lasted much longer.
However, the Senate was not technically in recess at the time. Senate Republicans were in fact holding pro forma sessions, during a 20-day recess, that specifically blocked President Obama from making recess appointments. Every three days, a Senator would arrive at the chambers, call a meeting to order, and then immediately call a recess.
The Supreme Court agreed that the Senate was not formally in recess. “In our view, however, the pro forma sessions count as sessions, not as periods of recess. 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. The Senate met that standard here,” read the ruling.
The ruling reins in attempts from the President, as well as future presidents, to use the Recess Appointments Clause loosely to appoint officials that the Senate may refuse to approve. The following graph shows the documented number of recess appointments by president dating back to 1981: