Washington • Sen. Mike Lee voted against every single executive and judicial nominee last year in a lonely protest against what the Utah Republican said were illegal appointments by President Barack Obama to the National Labor Relations Board.
On Thursday, after a unanimous Supreme Court ruled the NLRB appointments unconstitutional, Lee took a victory lap.
“I’m pleased with the outcome, but not surprised,” Lee said in an interview. “Having taken a pretty strong position against what he did, I’m very pleased that the court agreed with me and again, that it was not only a majority of the court but all nine members of the court that agreed that the president had no power to make recess appointments at a time when the Senate, according to its own rules, is not in recess.”
Obama, using a power referred to as a recess appointment, put in place three members of the labor board and the head of the new Consumer Financial Protection Bureau, on Jan. 4, 2012 while senators were on a holiday break but not technically in recess.
All 42 Republican senators filed a brief with the high court arguing that under Senate rules, the pro forma sessions they were holding meant the body had not taken an official break. Those pro forma sessions were taking place for the sole purpose of stopping the president from using his recess appointment powers. That power, granted by the Constitution, is meant to allow the president to fill vacancies when the Senate is unavailable to “advise and consent.”
The high court said in its ruling that the Senate’s sessions every three days during the holidays still allowed it to act, even if by voice votes, and the president’s authority for recess appointments was nonexistent.
“It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business,” Associate Justice Stephen G. Breyer wrote in the majority opinion.
White House Press Secretary Josh Earnest said Thursday afternoon that the administration was still reviewing the decision but was “deeply disappointed.” He, however, pointed out the ruling “does preserve some important elements of the president’s executive authority that he will not hesitate is using.” In a split decision, the high court said the president has the ability to fill vacancies as long as the Senate is out a minimum of 10 days.
Earnest also balked at the idea that Obama is going too far with unilateral actions.
“The president, though, remains committed to using every element of his executive authority to make progress on behalf of middle class families,” Earnest said aboard Air Force One en route to Minneapolis. “The president is in no way considering scaling back” his actions.
Lee, a former Supreme Court clerk, said he hoped the high court’s ruling would give Obama pause. House Speaker John Boehner announced this week that he would sue to overturn several of Obama’s moves that bypassed Congress.
“What we’ve seen is a president who has been willing to act unilaterally many, many times and I would hope that he would start being a little more cautious about how he wields his authority,” Lee said. “But only time will tell.”
Lee, sometimes backed by only a few fellow tea party senators, had voted against every one of the president’s nominees — even to the consternation of other GOP senators because he allowed Democrats to paint them as obstructionists. Senate Republicans, including Sen. Orrin Hatch, unified behind a strategy of challenging Obama’s actions in court.
Hatch, R-Utah, said the court’s ruling demonstrates how Obama’s actions contradicted the constitutional role of the Senate.
“The court has reaffirmed the Senate’s vital advice-and-consent role as a check on executive abuses,” Hatch said in a statement.
“I applaud the court’s willingness to stand up to President Obama’s flagrantly unconstitutional power grab. This decision strengthens my determination to stand up for the separation of powers against the president’s disturbing pattern of lawlessness.”
Senate Republican Leader Mitch McConnell of Kentucky said the court’s answer to Obama’s so-called recess appointments was a “unanimous rebuke” of the president.
“Today’s ruling is a victory for the Senate, for the American people, and for our Constitution,” McConnell said.
Senate Majority Leader Harry Reid of Nevada countered that Republicans have “done everything possible to deny qualified nominees” from receiving an up-or-down vote and Obama did the right thing in his appointments.
“The National Labor Relations Board had ceased to function due to Senate Republican obstruction of these three qualified nominees, threatening the livelihood and safety of working men and women throughout the country,” Reid said, adding that Democrats were also right in changing Senate rules to help push through nominees over objections of a small minority. That rule change, along with the replacement of the trio Obama appointed to the labor board, blunts the immediate impact of Thursday’s court ruling.