Today the Supreme Court unanimously held that President Barack Obama violated the Constitution when he made several appointments to the National Labor Relations Board (NLRB) and other agencies without Senate approval.
The Appointments Clause of the Constitution requires that all high-level executive branch positions (called “principal officers”) and all federal judges be nominated by the president, then must be confirmed by the Senate. The Recess Appointments Clause provides that if the Senate is in recess, the president can make appointments that can continue up to two years.
Not able to get several controversial nominees confirmed, Obama waited until the Senate adjourned for several days, then declared the Senate to be in recess, and unilaterally filled all those positions.
Obama made the shocking claim that he can declare the Senate in recess anytime there are not enough senators present on the Senate floor to do business. Under that theory, almost any night after dinner the president would be able to appoint Cabinet secretaries and even Supreme Court justices for up to two years without a Senate vote.
The majority opinion in NLRB v. Noel Canning was written by Justice Stephen Breyer, a liberal appointed by Bill Clinton, writing for five justices. Justice Antonin Scalia wrote a separate opinion for the four conservative justices that took a very different view of the Recess Appointments Clause that would restrict presidential power more significantly, but agreeing Obama’s actions were unconstitutional.