So Long to Recess Appointments

In a predictable decision, the U.S. Supreme Court unanimously held that Obama appointments to the National Labor Relations Board and the directorship of the Consumer Financial Protection Bureau made when the Senate was not actually in session but technically remained in session did not qualify as “recess appointments” that could be made without Senate confirmation.

Four conservative justices concurred with an opinion arguing that only appointments made between formal annual sessions can bypass the confirmation process.

Republicans will undoubtedly hail this decision as a blow against Barack Obama’s lawless and arrogant reign of executive tyranny bark bark woof woof. But the truth is that Obama has used recess appointments far less than such Republican predecessors George W. Bush and–wait for it!–Ronald Reagan. To the extent Obama has used this device, it was attributable to the unprecedented use of the filibuster by Republican senators against his nominees. Under the new Senate rules governing confirmation of non-SCOTUS appointees, this whole issue is largely moot.

The real problem is the status of NLRB decisions made by retroactively illegitimate appointees (the CFPB director was subsequently confirmed by the Senate, so his actions are not vulnerable to this decision). You can expect more litigation on this subject. But the idea that this is some sort of Blow Against the Obama Empire is ludicrous.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.