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The Supreme Court's Recess Appointment Ruling Should Petrify Democrats

Win McNamee/Getty Images

The Supreme Court just sent strong but subtle messages to both Democratic voters and the Obama administration's top administrators. First, to voters: you probably shouldn't sleep through the midterm election. Second, to administrators: Assuming the first message fails to penetrate, you should be prepared to stick around for the next two and a half years.

In a 9-0 ruling, the Court held that President Obama exceeded his Constitutional authority when he recess appointed a full complement of members to the National Labor Relations Board several years ago. In effect, the ruling holds that the Senate determines whether its in recess or not, and that presidents can't make recess appointments if the Senate puts itself in pro-forma session, or is forced into pro-forma session by the House.

The D.C. Circuit Court had hoped to limit the recess appointment power even more dramatically. If Senate Democrats hadn't already eliminated the minority's ability to filibuster most executive branch nominees, either ruling would have thrown both the NLRB and the Consumer Financial Protection Bureau into disarray, and probably forced them to deploy the nuclear option anyhow.

But all the positions Obama had filled using recess appointments have since been filled by Senate-confirmed nominees, and so the backward looking consequences of the ruling should be basically nil.

The problem is that Obama still has two and a half years left in his second term, and no guarantee that Democrats will control the Senate come January. The nuclear option allows Democrats to confirm basically anyone with 51 votes, but if they lose control of the chamber, that won't matter. Senate Republicans could, and probably would, return to their practice of denying confirmation to anyone nominated to implement and execute laws they don't agree with, making unexpected vacancies a potentially enormous problem.

Remember, this controversy stemmed from the Senate GOP's determination to filibuster all nominees to the NLRB, and all designated directors of the CFPB, regardless of qualification, in order to nullify laws they couldn't repeal or amend through the legislative process. It was a radical strategy, and it left Democrats no choices other than to either push the envelope on recess appointments or nuke the filibuster. In the end they did both.

Insodoing, they diminished the usefulness of the recess appointment power unilaterally. The Supreme Court has now diminished it further. And that means Obama will need to have a reliable team in place before November, or put one in place during the lame duck session if Democrats lose the Senate.