In it, but not of it. TPM DC
On Thursday, the Court unanimously gutted the president's authority under the Constitution's recess appointment clause to temporarily fill government post when the Senate is on holiday but gavels in and out to fulfill a constitutional requirement, known as pro forma sessions.
In effect, this means a hypothetical GOP majority leader could make every recess, including holidays and the summer break, a pro forma session.
"No, there is nothing to stop [Republicans from doing that]," Norm Ornstein, a congressional historian at the American Enterprise Institute, said. "Harry Reid did that, in effect, during the final stages of the [George W.] Bush presidency. This, I believe, is one reason why Reid is now spending so much of the Senate's time doing confirmations. They will grind to a halt next year if the Republicans get a majority."
Sarah Binder, a leading Senate expert and political science professor at George Washington University, said, "my sense is that there's nothing to stop a future majority from creating pro forma sessions to prevent the president from attempting a recess appointment" other than perhaps pity for the staffers who would have to work during holidays.
Binder floated one possible caveat. The Supreme Court, she noted, ruled that "the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business." The phrase is ambiguous. Democrats could try to exploit it by denying consent for conducting business during a pro forma session. But Republicans could argue that the Senate has such a "capacity" at all times because members can be called back to Washington on a few hours notice.
"I really don't know the answer to that, though I suppose that the Senate would still retain the *capacity* to act even though it was deadlocked," she said in an email.
Not only would that require Obama to clear any executive branch or judicial nominee with a hypothetical Majority Leader Mitch McConnell (who would control what comes to the Senate floor), it could eliminate his power to fill key positions in government agencies, even temporarily, without Republican consent. McConnell relishes confrontation against Obama and likes to use all available tools to thwart him. Before Democrats eliminated the 60-vote threshold in November for most nominees, his Republican minority filibustered presidential picks at an unprecedented pace, prompting Obama to use the recess-appointment power to keep government agencies properly functioning.
"Since President Obama took office, Senate Republicans have done everything
possible to deny qualified nominees from receiving a fair up-or-down vote," Reid said on Thursday. "More than anything, today's Supreme Court ruling underscores the importance of the rules reform Senate Democrats enacted last November."
Since Democrats triggered the proverbial nuclear option in November they've sought to confirm many Obama nominees, and quickly. If they keep the majority they'll have an easier time helping the president fill empty slots in the executive branch and federal courts. But if Republicans win the majority, the Supreme Court will have given them the power to grind Obama nominees to a dead stop, should they choose to use it.