Supreme Court Narrows President's Recess Appointment Power
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By Pete Williams
The US Supreme Court today limited a president's power to make
recess appointments when the White House and the Senate are controlled by
opposite parties, scaling back a presidential authority as old as the republic.
The case arose from a political dispute between President Obama
and Senate Republicans, who claimed he had no authority to put three people on
the National Labor Relations Board in January 2012 when the Senate was out of
town.
He used a president's power, granted by the Constitution, to
"fill up all vacancies that may happen during the recess of the
Senate." But the Republicans said the Senate was not in recess at the time
the appointments were made, because every three days a senator went into the
chamber, gaveled it to order, and then immediately called a recess.
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By a unanimous vote, the Supreme Court agreed that the Senate was
not in recess, holding that it's up to both houses of Congress to define when
they're in session or in recess. As a result of the decision, the Senate can
frustrate a president's ability to make recess appointments simply by holding periodic
pro forma sessions, a tactic used in recent years by both political parties.
The question, the court said, is whether the Senate had the
capacity to act. It found that during the recess at issue, the court did have
that power.
The stakes were no longer as high as they were when the case first
came to the Supreme Court, given that the Senate has now agreed that a
president's nominations need only 51 votes for confirmation.
It remained an important constitutional issue, even
though the reasons for recess appointments have changed. In the nation's early
days, when Congress was in session less than half the year, it made sense for a
president to have the power to fill a vacancy in order to keep the government
going before Congress came back to town months later.
But recent presidents have used the recess appointment power to
make an end run around a Senate that refused to confirm controversial nominees.
That use of the power is all but dead.
- Supreme
Court Narrows President's Recess Appointment Power
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published June 26th 2014, 10:03 am
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