AG Schmidt: Supreme Court unanimously backs states’ role in presidential appointments

The U.S. Supreme Court on Thursday unanimously blocked the president from bypassing the U.S. Senate when making appointments to federal agencies and offices, an important victory for small states like Kansas, Attorney General Derek Schmidt said.

In a unanimous decision, the Court ruled that the appointments of three of the five members of the National Labor Relations Board were invalid because they were made without Senate approval while the Senate was between pro forma sessions. The majority of the court held that in this case a Senate recess of less than three days was too short to allow the president to make so-called “recess” appointments without violating the Advice-and-Consent Clause of the United States Constitution. In effect, the Supreme Court said that the president lacks constitutional authority to determine when the Senate is in recess – only the Senate can do that.

“Going forward, there will be times when today’s decision benefits Democrats and other times when it benefits Republicans,” Schmidt said. “But protecting the role of the United States Senate – where our Founding Fathers gave every state an equal voice – in selecting key federal officers will always benefit small states like Kansas. And preventing the president from ignoring the Constitution’s checks and balances will always benefit every American’s liberty.”

While the unanimous decision imposes significant limits on the presidential recess appointments power, the Court by a 5-4 margin stopped short of adopting the stricter limitations that a lower court had imposed.

In this case, Schmidt joined with 16 other state attorneys general last year urging the Court to invalidate the appointments and to limit the president’s authority to bypass the Senate in making federal appointments. The case is NLRB v. Noel Canning, No. 12–1281.

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