Decision against recess appointments highlights limits of executive power


The Supreme Court’s decision against recess appointments highlights the president’s risky strategy. (Win Mcnamee/Getty Images)

The Supreme Court decision invalidating President Obama’s use of recess appointments laid bare the legal and political risks the president faces as he makes the aggressive use of executive power a core tenet of his second term.

With Congress refusing to embrace his agenda, Obama has turned to his presidential powers to take unilateral action on several controversial issues. He has postponed requirements of the Affordable Care Act. He has authorized tough new rules limiting power plant emissions. And he is seeking to impose new regulations to require companies to pay their employees more in overtime.

But as the Supreme Court case underscored Thursday, Obama’s high-profile assertions of executive power — part of a so-called “year of action” — are often the start of the story, not the end. Beyond Thursday’s ruling, Obama faces a new challenge in the form of a lawsuit against his executive actions that House Speaker John A. Boehner (R-Ohio) plans to file, as well as lingering ­cases in the courts that could put other initiatives at risk.

“The president is saying that he’s tired of gridlock. So he’s going to solve it on his terms. That’s not how the system works,” said George Washington University professor Jonathan Turley, an Obama supporter. “There’s a reason why things are not getting done in Congress. The reason Congress is divided is the voters are divided.”

Experts said as Obama asserts new powers, he risks legal backlash. In January 2012, Obama appointed senior officials to the Consumer Financial Protection Bureau and the National Labor Relations Board, taking advantage of a period when the Senate was not actively in session. Legal experts regarded the move as risky, given that historically recess appointments have been made when the Senate is formally out of session for an extended period.

“This White House chose to take on that battle and has now received some diminution in the power Obama can pass on to his successors,” said John Cooney, a former assistant to the solicitor general and deputy general counsel at the Office of Management and Budget. “That’s an object lesson for the White House who risked triggering the separation of powers question.”

Cooney said that while Obama will have reduced executive power relative to what he claimed, the office of the presidency has not been harmed much, because the court upheld the president’s right to make appointments when the Senate formally enters recess.

“It could have been a lot worse from their perspective,” he said. “In practical terms, the decisions . . . accepted the position on recess appointments that have been gradually worked out” since the 19th century.

Obama aides said Thursday that they were disappointed in the ruling but that the president would not alter his plans to aggressively use executive power for the remainder of his term.

“We’re, of course, deeply disappointed in today’s decision,” White House press secretary Josh Earnest said. “The president, though, remains committed to using every element of his executive authority to make progress on behalf of middle-class families.”

“The president is in no way considering scaling back” his executive actions, Earnest added. “That is something that he is determined to do. We would much prefer to work in bipartisan fashion with Congress to get that done. But if Congress refuses to act, the president will not hesitate to act on his own.”

On Wednesday, Boehner announced that he would seek the House’s backing for a lawsuit challenging Obama’s numerous executive orders, although he did not indicate which ones he would target.

“In my view, the president has not faithfully executed the law,” Boehner said Wednesday before releasing a memo saying that he was dismayed by executive actions in the areas of health care, energy, foreign policy and education. “This is about defending the institution.”

Next month, Boehner will gather three Republicans and two Democrats to form a House panel that will write the language of the lawsuit. Any lawsuit is expected to take several years to make its way through the federal courts.

The courts may also cause problems for Obama on other issues. One key case before several courts — Halbig v. Sebelius — seeks to exploit a mistake in the language of the Affordable Care Act to challenge subsidies paid to people who enroll on the federal insurance marketplaces under the law.

The text of the law mistakenly limited those payments to state exchanges, but the Internal Revenue Service ignored the error in its promulgation of Affordable Care Act rules. Conservatives have now sought to capi­tal­ize on the error to challenge the IRS rulemaking.

Lawmakers offered different perspectives on Thursday’s ruling. Republicans took it as evidence that the president has dramatically overstepped, while Democrats pointed out that the president has the power to make recess appointments, even if Obama overstepped on these.

“President Obama has circumvented Congress and ignored the Constitution whenever it is convenient for the implementation of his agenda,” said Sen. Jeff Sessions (R-Ala.), who called the ruling “powerful repudiation of a White House that believes it is above the law.”

“Today’s decision largely reaffirms the president’s recess appointment authority guaranteed by the Constitution, which is critical to ensuring the proper functioning of our government, and to protecting the health and welfare of our nation’s citizens,” said Rep. George Miller (D-Calif.).

Zachary A. Goldfarb is a staff writer covering the White House, focusing on President Obama’s economic, financial and fiscal policy.
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