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Justices rebuke president on recess appointments

Rule that Obama erred, but split over setting limits

WASHINGTON — The Supreme Court issued a unanimous rebuke to President Obama on Thursday, saying he had overreached in issuing recess appointments during brief breaks in the Senate’s work.

Obama violated the Constitution in 2012, the justices said, by appointing officials to the National Labor Relations Board during a break in the Senate’s work when the chamber was convening every three days in short pro forma sessions in which no business was conducted. Those breaks were too short, Justice Stephen G. Breyer wrote in a majority opinion joined by the court’s four other more liberal members.

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At the same time, the court largely reinstated an uneasy, centuries-long accommodation between the executive branch and the Senate, in which recess appointments were allowed during more substantial breaks. Breyer said such appointments generally remained permissible so long as they were made during breaks of 10 or more days.

Although there may be few immediate practical consequences of the ruling, given the recent overhaul of the Senate’s filibuster rules, the decision was nonetheless momentous, involving a constitutional adjudication of the balance of power between the president and the Senate.

Just how to strike that balance was the subject of a heated dispute between the court’s more liberal members and its more conservative ones.

The decision was momentous, involving a constitutional adjudication of the balance of power.

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The practical impact of the ruling over time “remains to be seen,” Justice Antonin Scalia said in a concurrence. Many experts say that if either house of Congress is controlled by the party opposed to the president, lawmakers can effectively block recess appointments by requiring pro forma sessions every three days. The Constitution says that each house must get the approval of the other chamber to adjourn for more than three days.

But Scalia was skeptical, noting that the president had the constitutional power to set adjournments when the chambers disagreed.

What was certain, he said, was that the court had endorsed a vast expansion of executive power. Chief Justice John G. Roberts Jr. and justices Clarence Thomas and Samuel A. Alito Jr. joined the concurrence, which was caustic and despairing.

“The court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need,” Scalia wrote, “into a weapon to be wielded by future presidents against future Senates.”

If it was hard to assess the immediate consequences, there was no question that Obama narrowly avoided a far broader loss, one that could have limited recess appointments to breaks between Congress’ formal annual sessions and even then to vacancies that arose during those breaks. That was the approach embraced by the court’s four most conservative members.

“The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” Scalia said from the bench.

The Constitution’s recess-appointments clause says, “The president shall have power to fill up all vacancies that may happen during the recess of the Senate.”

The Supreme Court’s decision affirmed a broad ruling last year by a federal appeals court in Washington that had called into question the constitutionality of many recess appointments by presidents of both parties. But the Supreme Court majority rejected the appeals court’s reading of the constitutional text, relying instead on historical practices and pragmatic considerations.

Josh Earnest, the White House press secretary, expressed dismay and satisfaction in equal measure. “We’re of course deeply disappointed in today’s decision,” he said. But Earnest added that the White House was “pleased that the court recognized the president’s executive authority as exercised by presidents going all the way back to George Washington.”

Miguel Estrada, a lawyer for Senator Mitch McConnell of Kentucky, the Republican leader, said the decision was a victory for the Senate and the separation of powers. “The Supreme Court reaffirmed the Senate’s power to prescribe its own rules, including the right to determine for itself when it is in session, and rejected the president’s completely unprecedented assertion of unilateral appointment power,” he said.

The issue of recess appointments and what they are meant to accomplish — installing a controversial nominee by circumventing the confirmation process — is largely a moot one on Capitol Hill.

Because Senate Democrats late last year changed the rules governing how nominees are approved and made it far easier for the president to get his officials confirmed, there is not much need for a recess appointment for now.

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