When one branch of government routinely abuses its constitutional power in order to prevent another from functioning, the Supreme Court is expected to take notice and stop the abuse. Unfortunately the court failed to do so Thursday in an important balance-of-power case, raising the prospect that President Barack Obama and his successors could have trouble making necessary appointments to executive posts as the nation’s politics become more sharply polarized.
The court invalidated a series of appointments Obama made to the National Labor Relations Board in 2012, at a time when Republicans were blocking all nominations to the board, regardless of merit, to prevent pro-union decisions. Obama had erred, the court said, by declaring the Senate in recess at a time when it was holding short pro forma sessions every three days when nearly all members were on vacation and no real business was being transacted. Though Article 2 of the Constitution gives the president power to make recess appointments, the unanimous opinion of the court was that these pro forma sessions did not constitute a recess because "the Senate is in session when it says it is," as long as it is capable of conducting business.
This view is willfully blind to the real purpose of the pro forma sessions, which were held solely to thwart the president from making recess appointments. No real legislating can take place when virtually all members are out of town — as the Senate’s official website says, "no business is conducted at these sessions." The fact that during one session the presiding officer rubber-stamped a payroll tax deal that had been reached the week before — cited by the court as proof of real business — doesn’t change what everyone in Washington knew was really going on.
The opinion, written by Justice Stephen Breyer, did at least preserve the theoretical right of presidents to make recess appointments at any time when Congress is closed for more than 10 days. In so doing, it reversed the bizarre prescription of the U.S. Court of Appeals for the District of Columbia Circuit that such appointments can only be made between sessions of Congress, and then only when vacancies occur during that limited recess. An expansive interpretation of recesses has prevailed since the beginning of the republic, Breyer wrote, showing a regard for history not shared by Justice Antonin Scalia and three of his conservative colleagues, who wrote a concurring opinion that supported the circuit court’s ruling.
But Breyer’s realism ended there. The one-minute sessions constituted a clear political abuse of power and are likely to continue. There won’t be any recesses that fit the court’s new 10-day formula as long as one chamber is controlled by a party that doesn’t occupy the White House. Democrats started this practice to block President George W. Bush’s recess appointments, and Republicans did the same thing under Obama, using the House’s power to prevent the Senate from adjourning.
The effect of the ruling is reduced somewhat because the Senate, in overhauling its filibuster rules last year, ended the ability of the minority party to block appointments with only two-fifths of the chamber. For the moment, Republicans are no longer able to prevent the functioning of an agency they don’t like, such as the labor board, by refusing to make any appointments. But all that could change if Republicans take over the Senate next year and begin blocking all nominees with a simple majority vote, then refusing to allow recess appointments.
The nature of lawmaking has changed. Many elected officials are now willing to allow government defaults, starve agencies and encourage government shutdowns. The court should have recognized that future presidents may need a legal backstop to make executive appointments just to keep the government running.
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