Soon enough, a lawsuit was filed calling an NLRB decision illegitimate because it was handed down by those nominees. But conservatives called these actions blatantly unconstitutional, and even some liberals agreed. "Gimmicks do not override the President's constitutional authority to make appointments to keep the government running," White House Communications Director Dan Pfeiffer wrote. He declared that, regardless of the pro forma sessions, he considered the Senate to actually be in recess - and therefore that could appoint those four nominees unilaterally. This prevented Obama from appointing some nominees the GOP had blocked - including three appointees to the National Labor Relations Board, and the director of the Consumer Financial Protection Bureau.įinally, in January 2012, an increasingly frustrated Obama took action. Turnabout was fair play - once President Obama had been elected and the Republicans took the House, the GOP effectively prevented the Senate from ever recessing, by requiring constant pro forma sessions (the House must consent for the Senate to go into a lengthy recess). I nstead, they'd hold "pro forma" sessions to keep the chamber technically active, so Bush couldn't use his recess appointment power. The annoyed Democrats then invented a new tactic - e ven when nearly all senators had left town, they would refuse to let the Senate recess at all. "Gimmicks do not override the President's constitutional authority"ĭuring the Bush Administration, Democrats blocked many of Bush's preferred nominees, and he responded by appointing them during recesses. 2) Why were Obama's recess appointments controversial? But until very recently, few have disputed that the Constitution gives the president the power to make them. This latter type of recess appointments has frequently been a source of partisan controversy. Some recess appointments are used simply because the Senate's out of town - but others have been used to appoint nominees who have been blocked by the Senate, or are highly likely to be blocked by them. Check out this Congressional Research Service report for an extensive list: And that's how the power has been understood, and frequently used, by presidents of both parties for decades. On first reading, it seems simple - when the Senate declares a recess, a president can appoint nominees to positions that would normally require Senate approval. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. What was the background of the case, and what are its consequences?Ĭonservatives immediately called Obama's actions unconstitutional, and even some liberals agreed 1) What's the history of recess appointments?Īrticle II of the Constitution states the following: And a minority of four conservative justices wanted to go even further, and to sharply limit the presidential recess appointment power overall. On Thursday, the Supreme Court ruled unanimously that President Obama unconstitutionally used his recess appointment power in 2012.
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