Although the Recess Appointments Clause grants the President power to fill vacancies during a Senate recess, the Supreme Court held that President Obama overstepped his boundaries. According to the Court, the term “recess” requires something more than merely a three-day break. In an opinion by Justice Breyer and joined by Justice Kennedy and the liberal wing of the Court, it held that a break of less than 10 days is presumptively not a recess that would enable the president to make a recess appointment. All nine Justices agreed that a break of less than four days is certainly not a long-enough recess during which the President can make recess appointments.
Justice Anton Scalia wrote a concurring opinion advocating for an even narrower interpretation of the Recess Appointments Clause. According to Justice Scalia, the clause extends only to breaks that occur between congressional sessions. This court decision is a victory for the requirement of “advice and consent” by the Senate for presidential appointments, and a setback for Obama’s power to continue building an Imperial Presidency, by appointing liberals to the court whom the Senate doesn’t want to confirm.
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