“Supreme Court sharply limits presidential power on recess appointments.”  Thus read the headline in the Los Angeles Times after the High Court’s decision in National Labor Relations Board v. Canning.  Applying its spin to the decision, National Review opined that “the Court rejected the administration’s power grab on recess appointments” and clarified when a recess of the Senate has taken place.  NR further crowed that “the Obama administration’s position has been defeated in at least 13—thirteen—cases before the Supreme Court since January 2012 that were unanimous decisions.”

From the headlines and commentary, one would think that executive power is on the wane, the administration is on the ropes, and the Constitution has once again been vindicated by the nine sages of First Street.

The actual opinion in Canning tells a different story—one that is all too familiar and that has been ignored in media coverage.  Under the pretext of limiting power, the Court has further aggrandized itself and brazenly rewritten constitutional provisions to suit its own tastes.

Canning dealt with presidential appointments to the National Labor Relations Board.  Rather than obtaining the advice and consent of the Senate as the Constitution requires in the typical case, the President made the appointments during a three-day intrasession break in January 2012.  President Obama resorted to the Recess Appointments Clause, which permits the president alone “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The language and purpose of the clause is clear.  If, for example, the U.S. ambassador to Russia were to die while the Senate is not in session, the president would need the power to appoint someone to represent American interests in such an important country.  The appointment only lasts until the end of the next session of the Senate, thereby giving the senators an opportunity to give advice and consent on who will take up the ambassadorship in a more permanent capacity.

The Supreme Court, however, did not find the language and purpose so clear.  Rather than viewing a recess as an intermission between two formal legislative sessions, the Court interpreted “recess” to mean an intrasession break of substantial length.  So what is a substantial length?  The Court held that a break of “less than 10 days is presumptively too short” to trigger presidential power under the Recess Appointments Clause.  And where did the Court get the ten-day yardstick?  It just made it up.  Much like the trimester system of abortion rights created in Roe v. Wade (1973), the Court simply fashioned the ten-day rule because, in the majority’s estimation, it seemed reasonable.

The Court also took liberties with the phrase “vacancies that may happen during the recess.”  This does not mean what it says, the Court explained, but includes vacancies that exist at the time of the recess.  This means that if the president nominates someone to fill a vacant judgeship, but the Senate does not act on the nomination during the session, then the president can go ahead and make the appointment, which will not expire until the end of the next session.  If the Senate still refuses to confirm the nominee, the president just has to wait for the next breather of ten or more days and reappoint the nominee.  This game of avoiding advice and consent could conceivably go on for a lengthy period of time.

Rather than curtailing executive power, as claimed by the headlines, the Court has approved the use of the Recess Appointments Clause when the Senate takes a ten-day break and held that the vacancy need not arise during the actual recess or break.  Both are counter to the clear text of the Constitution.

Of course, the Court also noted that the Senate is in session whenever the Senate says it is in session, and it has the capacity to transact business under its own rules.  Senate leaders can thus tailor their rules and schedule pro forma sessions to minimize recess or break time.  Depending on the composition of the Senate and the rules adopted, recess appointments might become very rare.  And they should be in light of the length of modern congressional sessions and the ease of 21st-century travel.

The real story with Canning, and one missed by the pundits left and right, involves the Court’s unabashed comfort at rewriting clear constitutional provisions.  In recent years, executive power has expanded at the expense of Congress, but this augmentation of constitutional authority pales when compared with the judiciary’s power grab over the last half-century or so.  Despite being a coequal branch, the Court claims to be the final authority on the meaning of the Constitution and shows no compunction when operating as a perpetual, yet unauthorized, constitutional convention.

If the Court can so deftly butcher the Recess Appointments Clause, then what will it do to more substantive constitutional provisions meant to restrain government and protect individual liberty?