Mike Lee. (Photo: Diego M. Radzinschi/NLJ)
Senate Republicans lauded the U.S. Supreme Court decision Thursday that invalidated President Barack Obama’s recess appointments to the National Labor Relations Board.
“It’s going to be very difficult for the president to get around this, because we can and I predict will continue to hold these pro forma sessions to make sure we don’t go into the kind of recess that can trigger the president’s recess-appointment power,” said Sen. Mike Lee, R-Utah, who was among the harshest critics of the three nominations at issue in National Labor Relations Board v. Noel Canning.
Lee was at the high court Thursday for the announcement of the ruling, which upheld the U.S. Court of Appeals for the D.C. Circuit. The high court said Obama lacked the power to make the appointments during a three-day recess when the Senate says it was—at least technically—still in session.
Lee agreed with a concurrence by Justice Antonin Scalia that the president should be limited to filling any vacancies that arise during a recess—but only if that recess occurred between the Senate’s formal sessions rather than during an intrasession break.
“There are additional ambiguities that would not exist had the majority come down where Justice Scalia came down,” Lee said. “But there is a whole lot less ambiguity now than there was in the lawless state in which we found ourselves on January 4, 2012, when the president made these unconstitutional recess appointments.”
President Obama appointed three new members to the National Labor Relations Board in January 2012 while the Senate was meeting for pro forma sessions every three days—and not for very long. A lone senator was present to gavel in and out each session.
“I certainly feel vindicated in the sense that all nine members of the U.S. Supreme Court agreed with my conclusion,” Lee said. “All nine of them, not a single one of them, not even those who have been appointed by this president, agreed with the president’s argument.”
Sen. Orrin Hatch, R-Utah, said in a statement that the court “has reaffirmed the Senate’s vital advice-and-consent role as a check on executive abuses.”
“The court’s unanimous decision demonstrates how the president’s actions contradicted both constitutional text and long-standing precedents that enshrine the Senate’s legitimate role in federal appointments,” Hatch said. “This decision strengthens my determination to stand up for the separation of powers against the president’s disturbing pattern of lawlessness.”
Sen. Chuck Grassley, R-Iowa, the top Republican on the Senate Judiciary Committee, had harsh words for the U.S. Department of Justice following the justices’ decision Thursday. He called the legal reasoning for the recess appointments “preposterous” and an “embarrassment.” The Justice Department, he said, mistakenly allowed the president to decide whether the Senate was in session. (Read the DOJ Office of Legal Counsel memo here.)
“The appointments were so blatantly unconstitutional that originally there was speculation that the Justice Department had not approved their legality,” Grassley said in a statement. “But in fact, the Department’s Office of Legal Counsel had provided a legal opinion that claimed to justify the appointments. Its reasoning was preposterous.
“The OLC opinion furthered a trend for that office from one which gave the president objective advice about his authority to one which provided legal justification for whatever action he had already decided he wanted to take,” Grassley said. “Perhaps now that the office has been so thoroughly humiliated, it will hopefully conclude that the department and the president will be better served by returning to its former role as a servant of the law and not of the president.”
Hatch and 41 other Senate Republicans filed an amicus brief in the recess-appointments case.
Contact Todd Ruger at email@example.com. On Twitter: @ToddRuger.