The Supreme Court has dealt Barack Obama a huge blow, and at the worst possible time. It has declared unconstitutional the executive orders by which he appointed several members of the administration without obtaining Senate approval. It is the U.S. president’s prerogative to nominate people to fill high-level posts in the administration, as well as all federal judges, including those on the Supreme Court. But his nominations must get a “yes” from the Senate to be legal. Obama preferred to rule “by decree,” by executive orders, and make a series of appointments during the period of congressional inactivity, the so-called “recess.”
The Constitution’s recess clause allows the president to designate high-ranking administration officials, for a period of up to two years, if the Senate is in “recess.” That is what Barack Obama did.
Therefore, at first glance, Obama’s actions are backed by the law. But circumstances cast the president’s appointments in a different light. That is because he had been fighting against the Senate, despite having a Democratic majority, to obtain its approval — and he took advantage of a Senate recess, plus his ability to make appointments during that period, to do it. In other words, the decision is formally within the bounds of the law, but pursues objectives that are contrary to it. It is, in summary, a legal fraud.
The majority opinion has been written by Justice Stephen Breyer, and signed by the remaining justices. The 9-0 decision against Barack Obama’s position is a blow of great political importance. Breyer thinks that a 3-day* recess, such as the Senate took then, is “presumptively too short” to allow him to make those appointments without the Senate’s acquiescence. However, Breyer did not want to go further. He points out “we are reluctant to upset this traditional practice” of making appointments during Senate recesses, because “doing so would seriously shrink the authority presidents have believed existed and have exercised for so long.”
He has been joined by four other progressive justices, plus Anthony Kennedy, who often alternates between progressives and conservatives. As for the latter, they would have signed a stronger position, but have preferred to sign on to Stephen Breyer’s writing.
The conservatives’ opinion has been written by Antonin Scalia. He laments that “the Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates.”
In any case, the Supreme Court’s decision is not only very hard on the Obama administration, but arrives at an especially inopportune time for the Democratic president. The Speaker of the House of Representatives,** Republican John Boehner, has announced that he will take Barack Obama to court. The reason is precisely the abuse, on the president’s part, of executive orders, such as those the Supreme Court has just declared illegal. The reason is that Boehner thinks Obama abuses his prerogative to issue executive orders, whose function is to clarify and enforce laws, as a way to “rule by decree,” avoiding the need to depend on Congress, and more specifically, the House of Representatives. This action initiated by Boehner is a first step toward President Obama’s impeachment.
*Editor's Note: The original article incorrectly states that it was a ten-day recess.
**Editor's Note: The original article incorrectly refers to John Boehner as House Majority Leader.