Under the standard set forth here, the Senate was in session during the pro forma sessions at issue. It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business. The Senate could have conducted business simply bypassing a unanimous consent agreement. In fact, it did so; it passed a bill by unanimous consent during its pro forma session on December 23, 2011. The Court will not, as the Solicitor General urges, engage in an in-depth factual appraisal of what the Senate actually did during its pro forma sessions in order to determine whether it was in recess or in session for purposes of the Recess Appointments Clause. Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.
A plurality opinion written by Justice Scalia and joined by Justice Clarence Thomas, Justice Samuel Alito and Chief Justice John Roberts would have ruled even more broadly to eviscerate the recess appointment power, restricting it to inter-session recesses and only to vacancies that arise during those recesses. Indeed the case was so clear-cut one can only conclude that the president didn’t care what the Constitution said. He was in a fight with Congress. Breyer intoned that this is no excuse: [The] Recess Appointments Clause is not designed to overcome serious institutional friction. It simply provides a subsidiary method for appointing officials when the Senate is away during a recess. Here, as in other contexts, friction between the branches is an inevitable consequence of our constitutional structure.
The decision nevertheless left intact the president’s recess power during recesses within or between sessions and for vacancies that open up before the recess. Todd Gaziano of the Pacific Legal Center remarked to me that this was a bit of a “split the baby” decision, “bound to disappoint almost any serious scholar, but at least it reached the right result on the claims at issue.” At any rate, he emphasized: ” A unanimous Court invalidated President Obama’s controversial recess appointments of three purported members of the National Labor Relations Board. So the immediate news today is that the Court has at least begun the important process of checking our imperious president. Today’s decision should also put wind in the sail of the lawsuit Speaker John Boehner is proposing. There is nothing to lose and quite a bit to gain from even a split decision cutting back on President Obama’s worst constitutional abuses of power.”
Senate Minority Leader Mitch McConnell (R- Ky.), who championed the case and submitted an amicus brief, had reason to crow, and he did in a written statement:
I welcome the Supreme Court’s important decision today that the President’s so-called “recess” appointments to the National Labor Relations Board two and one-half years ago were unconstitutional. This administration has a tendency to abide by laws that it likes and to disregard those it doesn’t. In this case, that disturbing and dangerous tendency extended to the Constitution itself. Whether it’s recess appointments or Obamacare, this troubling approach does serious damage to the rule of law, and the Court’s decision is a clear rebuke of the administration’s behavior. The President made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even bothering to wait for its advice and consent. A unanimous Supreme Court has rejected this brazen power-grab. All Americans should be grateful for the Court’s rebuke of the administration—and the Democratic Majority in the Senate should be embarrassed by its failure, yet again, to stand up to the President and to defend the Senate’s uniquely important role under our Constitution. I was proud to lead the effort to defend the Senate against the President’s unprecedented power grab.
House Speaker John Boehner hit a similar note: “By invalidating these appointments, the Supreme Court has reaffirmed that the president cannot ignore the Constitution, and selectively interpret our rules and practices for his political purposes.” He then previewed more House action to come: “In the coming weeks, the House will take action to defend the Constitution and protect our system of government and our economy from continued executive abuse.”
That there was not a single dissent speaks volumes about the lack of justification for the president’s habitual power grabs. That said, I don’t imagine for a second that his effort to run the government by executive order and to ignore parts of laws he doesn’t like will abate. As for the decisions rendered by a board that improperly appointed commissioners, the process of undoing and relooking at those cases (to the extent they have not already been overturned in court) will commence.