Court rules on recess appointments, abortion zones

By Mark Sherman
Associated Press

WASHINGTON (AP) — The Supreme Court last week limited the president’s power to fill high-level vacancies with temporary appointments, ruling in favor of Senate Republicans in their partisan clash with President Barack Obama.

The court also struck down a 35-foot (10 meter) protest-free zone outside abortion clinics in the state of Massachusetts.

The justices were unanimous in ruling that extending a buffer zone that far from clinic entrances violates the U.S. Constitution’s First Amendment rights of protesters.

The high court’s first case involving the Constitution’s recess appointments clause ended in a unanimous decision holding that Obama’s appointments to the National Labor Relations Board in 2012 without Senate confirmation were illegal. Obama invoked the Constitution’s provision giving the president the power to make temporary appointments when the Senate is in recess.

Problem is, the court said, the Senate was not actually in a formal recess when Obama acted.

Obama had argued that the Senate was on an extended holiday break and that the brief sessions it held every three days — what lawmakers call “pro forma” — were a sham that was intended to prevent him from filling seats on the NLRB.

The justices rejected that argument Thursday.

Justice Stephen Breyer said in his majority opinion that a congressional break has to last at least 10 days to be considered a recess under the Constitution.

Neither house of Congress can take more than a three-day break without the consent of the other.

The issue of recess appointments receded in importance after the Senate’s Democratic majority changed the rules to make it harder for Republicans to block confirmation of most Obama appointees.

But the ruling’s impact may be keenly felt by the White House next year if Republicans capture control of the Senate in the November election. The potential importance of the ruling lies in the Senate’s ability to block the confirmation of judges and the leaders of independent agencies like the NLRB. A federal law gives the president the power to appoint acting heads of Cabinet-level departments to keep the government running.

Republican leaders in both houses, House Speaker John Boehner and Sen. Mitch McConnell, praised the court for rejecting what they described as Obama’s unconstitutional power grab.

Senate Majority Leader Harry Reid said the decision underscores the importance of the Senate rule change to make sure that a small number of senators cannot block qualified nominees.

Still, the outcome was the least significant loss possible for the administration.

The justices, by a 5-4 vote, rejected a sweeping lower court ruling against the administration that would have made it virtually impossible for any future president to make recess appointments.

The lower court held that the only recess recognized by the Constitution is the once-a-year break between sessions of Congress. It also said that only vacancies that arise in that recess could be filled. So the high court has left open the possibility that a president, with a compliant Congress, could make recess appointments in the future.

Justice Antonin Scalia, writing for himself, Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, said he would have upheld the lower court’s reasoning. He said Thursday’s decision means “the abolition of the Constitution’s limits on the recess-appointment power.”

Obama has made relatively few recess appointments, 32 in his five-plus years in office, according to the Congressional Research Service. President George W. Bush made 171 such appointments over two terms and President Bill Clinton filled 139 posts that way in his eight years in office, the research service said.

But Obama was the first president to try to make recess appointments when Congress explicitly said it was not in recess. The Constitution requires that the Senate and House must get the other’s consent for a break lasting longer than three days. At the end of 2011, the Republican-controlled House would not give the Democratic-led Senate permission for a longer break.

The partisan roles were reversed during Bush’s presidency, when Senate Democrats sought ways to prevent the president from making recess appointments.

In fact, the very basis on which the justices decided the case — that the Senate can use extremely brief sessions to avoid a formal recess — was a tactic devised by Reid to frustrate Bush.

On a practical level, there may be little difference between how the court decided the case and Scalia wishes it were decided, said Andy Pincus, a veteran Supreme Court lawyer in Washington.

“The practical effect of today’s decision is to return the rules governing recess appointments to what just about everyone believed them to be before President Obama adopted a significantly broader view of that authority in January 2012.

Those rules give Senate the ability to block all recess appointments by convening for pro forma sessions — a practice that began under the Bush administration and has continued in the Obama administration.

The recess appointment power has receded into practical irrelevance as a result of this practice, and today’s decision likely cements that reality,” Pincus said.

A recess appointment can last no more than two years. Recess appointees who subsequently won Senate confirmation include Chief Justice Earl Warren and Justice William Brennan, Federal Reserve Chairman Alan Greenspan, two current NLRB members and Consumer Financial Protection Bureau director Richard Cordray.

Former UN Ambassador John Bolton is among recess appointees who left office because they could not win a Senate vote.

The case challenging the appointments was brought by Noel Canning, a soft drink bottling company in Yakima, Washington.

The company claimed an NLRB decision against it was not valid because the board members were not properly appointed and that the board did not have enough members to do business without the improperly appointed officials.

Noel Canning prevailed in the U.S. Circuit Court of Appeals for the District of Columbia, and two other appeals courts also had ruled against recess appointments.

The justices were unanimous in ruling that extending a buffer zone that far from clinic entrances violates the U.S. Constitution’s First Amendment rights of protesters.

Chief Justice John Roberts said authorities have less intrusive ways to deal with problems outside clinics and noted that most of the problems reported by police and the clinics occurred outside one Planned Parenthood facility in Boston, and only on Saturdays when the largest crowds typically gather.

“For a problem shown to arise only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the Commonwealth is hardly a narrowly tailored solution,” Roberts said.

In general officials at these clinics said they are most concerned about safety because of past incidents of violence. In 1994, a gunman killed two receptionists and wounded five employees and volunteers at a Planned Parenthood facility and another abortion clinic in Brookline, Massachusetts.

The most recent killing was in 2009, when Dr. George Tiller, who performed abortions, was shot in a church in Wichita, Kansas.

The political debate over abortion shows no signs of being resolved, more than 40 years after the Supreme Court legalized the procedure in the case of Roe vs. Wade.

Young people today are somewhat more conservative on the issue than middle-aged Americans, but the nation is split on the deeply personal issue.

While the court was unanimous in the overall outcome, Roberts joined with the four liberal justices to strike down the buffer zone on narrower grounds than the other more conservative justices wanted. In a separate opinion, Justice Antonin Scalia criticized Roberts’ opinion for carrying forward “this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.”

Scalia said state and local governments around the country would continue to be able to “restrict antiabortion speech without fear of rigorous constitutional review.”

Still, abortion rights advocates lamented the decision and said it compromised the safety of women seeking abortions.

“This decision shows a troubling level of disregard for American women, who should be able to make carefully considered, private medical decisions without running a gantlet of harassing and threatening protesters,” said Cecile Richards, president of Planned Parenthood Federation of America.

Mark Rienzi, who represented the protesters at the Supreme Court, said, “The government cannot reserve its public sidewalks for Planned Parenthood, as if their message is the only one women should be allowed to hear. Today’s decision confirms that the First Amendment is for everyone, and that the government cannot silence peaceful speakers.”

The justices will meet one last time on Monday to hand down decisions in cases involving the Obama health law requirement that employers cover women’s contraception in their employee health plans and the ability of unions representing government employees to collect fees from workers who don’t wish to join the union.

The buffer zone case began when Boston-area grandmother Eleanor McCullen and other abortion opponents sued over the limits on their activities at Planned Parenthood health centers in Boston, Springfield and Worcester.

At the latter two sites, the protesters say they have little chance of reaching patients arriving by car because they must stay 35 feet not from the clinic entrances, but from the driveway to those buildings’ parking lots. Patients enter the building through the parking lots, which are private property.

Planned Parenthood provides health exams for women, cancer screenings, tests for sexually transmitted diseases, birth control and abortions at its clinics.

The organization said that the buffer zone has significantly reduced the harassment of patients and clinic employees. Before the 35-foot zone went into effect in 2007, protesters could stand next to the entrances and force patients to squeeze by, Planned Parenthood said.