Justices rein in presidential appointment powers and rule out abortion clinic buffer zones
JUDY WOODRUFF: The U.S. Supreme Court handed down a pair of unanimous decisions today in two high-profile cases. In one, the court reined in the appointment powers of the president. The justices ruled that President Obama’s temporary appointments to the National Labor Relations Board in 2012 were illegal because Congress wasn’t in recess.
Marcia Coyle of “The National Law Journal” was at the court this morning, and she joins us now.
MARCIA COYLE, The National Law Journal: Judy.
JUDY WOODRUFF: So, Marcia, let’s take this case involving presidential powers first.
MARCIA COYLE: OK.
JUDY WOODRUFF: This case was brought by a canning company, and, as we said, it had to do with the president making appointments to the National Labor Relations Board.
MARCIA COYLE: That’s right.
And did he use that pursuant to his power under the recess appointments clause in the Constitution. Judy, it’s surprising that, in more than 200 years, the Supreme Court has never looked at the scope or meaning of the recess appointments clause.
They had really no prior decisions to rely on in this case, but they had three questions they had to answer because of the lower court ruling that really was in favor of the Washington state bottling company that was fighting a ruling by the NLRB that it had engaged in an unfair labor practice with its union.
So, the justices in — even though this was a unanimous decision, Judy, it’s important to note that it was only unanimous in the end result, that these three appointments were invalid. The justices really split 5-4 on how you reach that result.
And it was a very sharp 5-4 split. Justice Breyer wrote for — really wrote the main opinion for the majority that included the court’s more moderate liberal members, as well as Justice Kennedy.
And what he did was, he looked at the meaning of the words in the recess clause “the recess” and also looked at the purpose of the clause, which was to ensure the smooth functioning of government when there are vacancies, and gave considerable weight to historical practices of presidents and the Senate.
JUDY WOODRUFF: It really did come down to the definition that they could agree on what is a recess.
MARCIA COYLE: Right, exactly.
JUDY WOODRUFF: Now, what does it mean? What is the Senate doing or not doing during that period, so that the president can make appointments without Senate confirmation?
MARCIA COYLE: Exactly.
And what the majority held here was, one, the president can make appointments during any recess that is at least 10 days or longer. The issue came up that — or the lower court had held only between annual sessions of Congress, not intra-session recesses. But the court said any recess that’s at least 10 days or longer.
The other issue that was very important to this particular case was whether the president could make appointments to fill vacancies during breaks between pro forma sessions of Congress. In this case, there were three-day breaks. And the Senate said it was in session, it wasn’t in recess.
But the majority here held — and, actually, this was unanimous — that the Senate determines when it is in recess, and as long as it’s capable of being able to do business, it’s in session. And that was the case with these three appointments. Consequently, the appointments were invalid.
JUDY WOODRUFF: And, as you point out, it was unanimous in the result, but the justices differed in their reasoning.
MARCIA COYLE: Yes.
JUDY WOODRUFF: In fact, some pretty tough language from the more conservative justices.
MARCIA COYLE: Very, very tough.
Justice Scalia read a summary of what would be the dissent from the bench. And he was joined by the chief, as well as Justices Thomas and Alito. And he said he disagreed completely with the majority’s view of what the meaning of the words recess were or when does a vacancy arise. That was another key issue in the case. The majority said that the president can fill vacancies that occur during a recess, as well as preexisting vacancies.
And he disagreed strongly with the interpretation of the history of practices of prior presidents. And he accused the majority of making up rules here and of judicial adventurism. But Justice Breyer came back at him and said that, under the dissenting view, thousands of recess appointments would have been invalidated under that view.
JUDY WOODRUFF: And it’s interesting. The other big decision they handed down today, also unanimous, but the reasoning differed among the justices again.
MARCIA COYLE: Again. Again.
JUDY WOODRUFF: This one, of course, had to do with Massachusetts law, a ban on anti-abortion activists being able to be in an area outside of abortion clinics.
MARCIA COYLE: Well, it actually was a 35-foot buffer zone, so it wasn’t just anti-abortion protesters.
It could be pro-abortion rights protesters as well. But it kept out everybody except clinic employees and people who needed to walk through that area in order to get to another destination. And, here, Chief Justice Roberts wrote the opinion, which was a surprise as well, because he didn’t ask one question during the oral arguments in this case.
But he said in his opinion that where Massachusetts went wrong here was that it didn’t narrowly tailor what it was doing to the problem it was trying to solve. It wanted to have order on the streets. It wanted to protect public safety, as well as the women’s safety, but the buffer zone burdened too much speech.
And these women who brought the challenge, who really were anti-abortion activists, they were not protesters, he said. They wanted to engage in quiet counseling of these women. And the buffer zone prevented them from their two primary tools, which was face-to-face conversations and distributing leaflets and information.
JUDY WOODRUFF: But the liberal justices agreed with the final definition.
MARCIA COYLE: They did.
And I think here what was important was the Supreme Court was urged by anti-abortion groups, but didn’t overrule a prior 2000 precedent on buffer zones. And, also, the chief justice said the law itself didn’t discriminate on the basis of viewpoint. It didn’t favor anti-abortion or pro-abortion over one or the other.
Justice — the dissenters again here, Justice Scalia writing, said that it did discriminate on the basis of viewpoint, and the court should have struck it down on that basis and should have thrown out that 2000 precedent.
JUDY WOODRUFF: It’s still unusual, I guess, to get two unanimous rulings on the same day.
MARCIA COYLE: There’s been quite a bit of unanimity this term, Judy.
JUDY WOODRUFF: All right, well, you’re the expert.
JUDY WOODRUFF: So, Marcia, just very quickly, only one more day…
MARCIA COYLE: Monday.
JUDY WOODRUFF: … when this — of this term, when the justices can hand down. And there are some cases you’re looking for.
MARCIA COYLE: There are two left. One is a very important union case. And the other is the challenge by the religious owners of for-profit corporations to the contraceptive requirement in the Affordable Care Act.
JUDY WOODRUFF: I have a feeling you’re going to be right back here on Monday.
MARCIA COYLE: I think so.
JUDY WOODRUFF: Marcia Coyle, thank you.
MARCIA COYLE: My pleasure, Judy.
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