Obama Recess Appointments Struck Down, But Is It Really A Setback?

We reported yesterday that the Supreme Court unanimously ruled that President Obama’s recess appointments to the National Labor Relations Board were unconstitutional, but what does that decision really mean?

It’s unclear if it will have much of an impact in the near-term. As The Atlantic‘s David Graham pointed out, part of the political problem was that the lack of a strong Democratic majority in the Senate made confirmations difficult. Democrats wanted up-or-down votes while Republicans insisted on blocking many. Obama just wanted his nominees appointed. That led to a situation where Senate recesses were prime time for clearing the log jam, even if temporarily.

But that political dynamic might change if the GOP takes the Senate this November. From Graham:

“But Republicans are generally favored to win back the Senate in November. If they do, they’ll have new power to block presidential appointments, and Obama will have a new incentive to find ways to work around them. Minority Leader Mitch McConnell has also suggested he would change the rules back to allow filibusters on nominees. If all this happens, the Court’s decision could be very influential in the last two years of Obama’s presidency.”

But the Court’s ruling was also somewhat narrow. While the vote was unanimous in striking down the NLRB appointments, there was a split in how the nine justices saw the presidential power of recess appointments broadly speaking.

SCOTUSBlog‘s Lyle Denniston broke down the interpretation of the recess appointment clause this way:

“First, the president may make a temporary appointment when the Senate is in recess between its annual sessions when it takes a formal break or during interruptions of one of its annual sessions, provided that the Senate actually has made itself unavailable for at least ten days. The Court turned aside the idea that this power would exist only when the Senate was formally out of town between annual sessions.

“Second, the president may make a temporary appointment when the Senate is in recess, even if the vacancy arose before the Senate became unavailable and remained unfilled when it took a recess. The Court refused to embrace the notion that the power applied only to a government post that became vacant during a recess, and had to be filled during that recess.

“Both of those parts of the decision went in favor of presidential authority to fill vacant posts.

“Third, in the only part of the ruling decidedly against presidential prerogative, the Court barred the president from filling a vacancy when the Senate is holding what it, by its own action, treats as a working session even if it does no real work and shuts down fully every three days. That is too short to be treated as a recess.”

But Justice Antonin Scalia wrote a separate opinion, joined by the Court’s conservative justices, that, according to Denniston, “roundly criticized the majority for providing constitutional cover for a massive seizure of presidential power.” For the conservatives, congressional failure wasn’t reason enough to rule something constitutional.

But has Obama really gone out of control when it comes to recess appointments? The numbers make that claim rather dubious.

Earlier this year, when the NLRB case was before the Court, the Pew Research Center’s Fact Tank blog pointed to a Congressional Research Service report that offered some interesting historical data about recent presidential recess appointments. So far, Obama has lagged far behind his four immediate predecessors with only 32 (as of the February 2013 study). By comparison, Ronald Reagan made 232 over the course of his presidency, George W. Bush 171, Bill Clinton 139, and George H.W. Bush 78.

As Vox points out, the filibuster deal reached by the Senate last year means that Obama’s problems with appointments aren’t as pressing as they once were, so it’s unlikely the decision has a noticeable practical effect. At least in the near term. For the most part, Obama will still be able to enjoy the long-held presidential power to make recess appointments.