Finally, the majority agrees to rely on the Senate’s determination that it is “in session” and not recessed even if this depends upon the Senate holding pro forma sessions under its own rules. Justice Scalia and his concurring justices view this legislatively dependent check on executive power as a poor, weak substitute for the clear, limiting language of the Constitution itself. They also fear that based on the majority’s reasoning, this decision could well have the effect of “aggrandizing the Presidency beyond its constitutional bounds, and undermining respect for the separation of powers.”
In short, President Obama’s appointments to the NLRB are defeated; but the recess appointment power is still very much alive. The Supreme Court has spoken.
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