WASHINGTON – The US Supreme Court decided this week to strike down the President’s ability to use recess appointments of judicial and executive nominees to circumvent Congress.
The Supreme Court was called upon to decide whether President Obama could make recess appointments even when the Senate was in “pro forma” session. The court ruled unanimously that President Barack Obama over-reached his power when he filled several federal positions while the US Senate was on break, saying the appointments were unconstitutional.
Article II, Section 2 of the Constitution provides for only two ways in which Presidents may appoint certain officers. First, it provides that the President nominates – with the advice and consent of the Senate – appoints various officers. Second, it permits the President to make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess. On January 4, 2012, the President made four appointments. They were purportedly based on the Recess Appointments Clause. He took this action even though they were not made, in the words of the Constitution, “during the recess of the Senate.”
“These appointments were blatantly unconstitutional,” Iowa Senator Charles Grassley said. “They were not made with the advice and consent of the Senate. And they were not made ‘during the recess of the Senate.'”
According to Grassley, in December and January of 2011 and 2012, “the Senate held sessions every three days. It did so precisely to prevent the President from making recess appointments. It followed the same procedure as it had during the term of President Bush, with the insistence of Majority Leader Reid. President Bush declined to make recess appointments during these periods. But President Obama chose to attempt to make recess appointments despite the existence of these Senate sessions.”
The Supreme Court ruled that “[F]or purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.”
Grassley said that no President in history had ever attempted to make recess appointments when the Senate said it was in session. He said President Obama failed to act “consistent with the Constitution’s broad delegation of authority to the Senate to ‘determine the Rules of its Proceedings,’” as the Constitution states. “These illegal appointments represent just one of the important areas where President Obama has disregarded the law with his philosophy of the ends justify the means. We should all be thankful the Supreme Court has reined in this kind of lawlessness on the part of this Administration.”
Grassley called the Supreme Court’s finding “a significant decision” and “the Supreme Court’s biggest rebuke to any President since 1974, when it ordered President Nixon to produce the Watergate tapes. Thanks to the Supreme Court, the use of recess appointments will now be made only in accordance with the views of the Founding Fathers.”
White House Press Secretary Josh Earnest said Thursday while aboard Air Force One,
En Route to Minneapolis, that “we’re of course deeply disappointed in today’s decision and are still reviewing it. We are, however, pleased that the Court recognized the President’s executive authority — as exercised by Presidents going all the way back to George Washington — to fill vacancies when the Senate fails to act. I should note that the decision, which we’re still reviewing, does preserve some important elements of the President’s executive authority, and he will not hesitate to use it to move the country forward.”