For the twelfth time in five years, the Supreme Court has unanimously rejected a case made by the Obama administration. This was one of Obama’s worst: The White House took the position that it could decide when the Senate was in recess, in blatant violation of the constitutional order and the ancient tradition that a legislature sets its own rules.
The White House wished the Senate to be in recess when in fact it was holding pro forma sessions, because Obama wanted to push through the nominations of three members of the National Labor Relations Board whom the Senate would not approve.
So, in January 2012, the White House placed the three members on the board unilaterally, claiming it was using a power the Constitution provides to fill “vacancies that may happen during the recess of the Senate.” The justices were divided on whether this power extends only to vacancies that arise during a recess, or whether recess appointments can be used to fill vacancies that arose before the recess began. The former interpretation seems to be the intent and literal meaning of the Constitution, as Justice Scalia (joined by Alito, Roberts, and Thomas) argued, but the majority held that historical precedent should preserve the president’s power to fill any vacancies during a recess.
In any case, the Court ruled the appointments invalid since the Senate was clearly not in recess when they were made. (What happens to the NLRB rulings made by the invalidly appointed members is not clear.)
Americans’ distaste for such policies was part of why the House and the Senate were skeptical of the new NLRB appointments. The NLRB itself is likely a usurpation of the constitutional order, too, and has long accorded unions unfair privileges and shielded their abuses.
An administration that has shown no great commitment to the rule of law has been administered a welcome correction, which is good news for the constitutional order and the public it serves.